Address to Resource Management Law Association conference, Hamilton

  • Nick Smith

Kia ora huihui tatou katoa

Can I start by acknowledging your president Helen Atkins, the other speakers, and members of the Resource Management Law Association.

There are four dimensions I want to cover this morning regarding resource management law.

First up, I want to set the scene on why it matters and the context of our RMA reforms in the broader environment and economic policies of this Government.

Second, I want to review progress on our first phase of resource management changes and the results of the 2010/11 RMA report on Council performance.

Thirdly, I want to update you on progress on the significant work streams in our second phase of RMA reforms.

Finally, I want to reflect on the performance of the RMA on the vexed issue of subdivision approval in the eastern suburbs of Christchurch and Kaiapoi, and how this impacts on our forward reform programme.

First, let me set the scene.

Resource management law matters to New Zealand a great deal. We, more than any other OECD country, depend on the effective management of our natural resources for our economic well being.

Being clean and green is part of our brand, part of our national identity. We need to do it well.

I’m not shy about saying there is much about our environment and how we manage it that is good. I do get a bit cross when people jump at the opportunity to bag it unfairly as we saw last week over the false air quality data.

But I’m also keen that we have an honest conversation about where we don’t match up and where we need to improve.

When National came to Government in 2008 we identified five priority areas where we needed to lift our game.

Our top priority was greenhouse gas emissions and climate change. There had been talk about putting a price on emissions for fifteen years, but no one had done it. Our emissions had grown at embarrassingly high rates. Our proportion of renewable power had dropped as we built new fossil fuelled capacity over the last decade. Our emissions were set to overshoot our Kyoto targets and cost us $450 million.

We have successfully implemented our moderated ETS. It has reversed the record deforestation under the previous Government and helped initiate new plantings.

We have seen a surge in consenting for renewable power stations and last year we hit a 10-year high in renewable power. We are now comfortably on track to meet those Kyoto obligations and our net emissions have dropped for two consecutive years for the first time since 1990.

The ETS policy has been complemented by insulating 120,000 homes in this term of Parliament – four times the number of the last term.

We’ve helped 6700 homes convert to solar water heating, that’s 30 times as many as during the last term.

We’ve introduced road user charge exemptions for electric cars, put $1 billion into electrifying Auckland rail and $50 million into the national cycleway.

There is still much work ahead on climate change but international commentators are acknowledging New Zealand has made more progress than most developed countries.

Our second priority has been improving freshwater management. In 2009, the Land and Water Forum was established and it has made good progress with its substantive report to Government this past April.

This national collaboration process has been pivotal in getting similar regional initiatives in Rotorua, Manawatu and the Mackenzie underway. We’ve lifted the investment in freshwater clean-ups by five fold. We’ve put a National Policy Statement in place on freshwater management.

Seventy percent of irrigation is in Canterbury and it is where the problems are most acute. Last year we made the difficult decision to replace the Council with Commissioners. We, at long last, have a Natural Resources Plan in place. Farm compliance with resource consents has improved more than anywhere. Zone committees are making good progress on water plans. We now have a $12 million clean-up plan for Te Waihora/Lake Ellesmere, our most polluted lake in the country.

A third priority has been making progress on improving New Zealand’s air quality.

We’ve put a realistic new national standard in place and we are making real progress on the practical changes required to make our air cleaner.

I do get a bit cross when these changes are criticised. We all know that the biggest contributor to poor air quality is old home fires. This Government has funded 26,500 homes to convert to clean heating in three years. Labour did 800 in nine years.

We’ve also stuck to our guns in insisting on tougher vehicle emission standards despite a legal challenge from the second hand car dealers.

The air quality figures for 2010 were the best ever.
A fourth priority for Government has been better managing waste and contaminated sites.

In 2009 we introduced the waste levy to provide a stronger incentive for recycling and to help fund new waste reducing initiatives.

We’ve installed thousands of Love NZ recycling bins as part of Rugby World Cup 2011 to encourage public place recycling.

We’ve introduced a network of 35 all year round e-waste recycling centres.

We’ve initiated a trial programme to recycle old cathode ray tube televisions, collecting 28,000 in the last month.

We’ve initiated programmes for managing high harm wastes like anti-freeze, PCBs and product stewardship schemes for paint, agri-chemicals and silage wrap.

We’ve also initiated and funded the clean-up of the Tui mine contaminated site here in the Waikato in partnership with the Green Party.

In the next fortnight I will be announcing our latest National Environment Standard on managing contaminated land.

The Government has been busy in our bluegreen legislative reforms. In 2009 it was the ETS and the first phase of the RMA reforms. In 2010 it was aquaculture and the EPA legislation. This year our priority has been the new EEZ legislation.

A common theme in each of these has been a careful balancing of New Zealand’s economic and environmental interests. We want policies that will support our ambition for a stronger economy that will deliver more jobs and better living standards, but also policies that will protect the great Kiwi lifestyle and our important clean, green reputation.

I announced last month the next important stage in this work. New Zealand is the only OECD country to not have a requirement for statutory environmental reporting. This is a role we intend to give to the independent Parliamentary Commissioner for the Environment.

We don’t want a piece of environmental advocacy or public relations. We want a report that just says it the way it is.

The proposals include amendments to the RMA to ensure consistent monitoring of key resources like freshwater quality. While the reports recently released on costs and processing times are of value, it is important we actually measure how well the Act is delivering on protecting our environment.

This reform fits within the broader context of the Government’s plan for the Environment Ministry as a policy think tank akin to Treasury, the EPA as the arms length regulator akin to the Reserve Bank and the PCE as the auditor-general of our environmental systems.

We look forward to feedback on these proposals for a new Environment Reporting Act with the intention, subject to an electoral mandate in November, for legislation next year.


The second issue I want to canvass is the RMA and the progress from our first phase of reforms.

Those amendments were the biggest reforms to the RMA in 20 years and have reduced costs, uncertainty and delays that had frustrated New Zealand homeowners, small businesses and farmers for years.

Just last week I was able to report back to the Local Government and Environment Select Committee on the effect of those 2009 RMA amendments and the results of the report from Councils.

I’m pleased that there has been a marked improvement in virtually all aspects of council performance compared with that seen in 2008. The changes are working.

Consent Processing
Delays in processing resource consents got progressively worse over the last decade, from 18% in 2002, to 23% in 2004, to 27% in 2006, and to 31% of consents being late in 2008. In the last year, only 5% of resource consents were late. This means that in contrast to 16,107 consents being late in 2008, there were only 1,807 late in the last year.

Other highlights include a reduction of council timeframe extensions – down from 28% in 2008 to just 15% in this report – and a decrease in further information requests – from 43% last time to 35% in this survey.

These performance improvements have been across the whole country. It is noteworthy that only a very few Councils have less than 90% compliance today as compared to only a few better than 90% three years ago in respect of statutory timeframes.

It is not just the legislative changes of requiring discounts for lateness, justification for extensions and restrictions on further information requests that have delivered the improvements. It is about the Government setting clear expectations. The intervention in Canterbury over their appalling 29% compliance has worked with it now doing 92% on time.

The situation is not as serious today but I do intend to follow up with three outliers: Kaipara for an extremely high 72% of consents extended, and Waimate and Palmerston North for timeliness compliance of 78% and 77%. I am giving Waimakariri the benefit of the doubt given the huge challenges they have faced over earthquakes. I have also sent congratulatory messages to 13 councils who achieved 100% compliance.

The drop off in consent volumes is no doubt a contributing factor to this turnaround. Some of this is due to other changes like no longer requiring a resource consent for tree trimming that eliminated 1400 consents in Auckland. Even taking into account the impacts of the economic slowdown, the change is significant and a relief for thousands of frustrated homeowners and businesses trying to get ahead in life or creating new enterprises.

National Consenting
The new national consenting process with the EPA is also delivering real benefits for the community.

Of the seven proposal of national significance lodged with the EPA since October 2009, five have been referred to boards of inquiry and one to the Environment Court for a decision. The Government is yet to make a direction on one application (for King Salmon).

I am delighted to report that under the 2009 amendments the three final decisions made so far – Tauhara II geothermal power plant, the New Zealand Transport Agency’s Waterview Connection motorway proposal, and Wiri Prison – were made in record time, cutting years of processes that existed prior to the 2009 amendments.

Anti-competitive appeals
The trade protection provisions introduced by the 2009 amendments appear to be having the desired deterrent effect with a range of projects, such as supermarkets, experiencing fewer delays through objections from competitors. It was pleasing to see the Courts capture the spirit and intent of the new provisions in the General Distributors v Foodstuffs case earlier this year.

Enforcement and compliance
The Courts have also picked up on the intent of Parliament that environmental offenders should be dealt with more severely.
The increase in maximum fines levels has had the desired effect, with the average fine imposed for illegal dairying discharges – where offences are broadly comparable between years – has increased from approximately $12,000 to $30,000 in the year to August.

The deterrent effect of higher penalties should help avoid high costs for remediation of environmental damage down the line.

Direct referral to the Environment Court
The ability for applicants to refer potentially contentious applications directly to the Environment Court has been used on seven occasions so far.

The early signs from the three decisions made by the Courts so far are promising with decisions made in months rather than years.

The Government has also ensured there will be no repeat of the Whangamata Marina fiasco. Not only has the final decision-making role in respect of restricted coastal activities been rightfully returned to councils, but the New Zealand Coastal Policy statement has dispensed with the activity class entirely.

Greater Use of National Instruments
A major objective of this Government’s approach to resource management has been to step up and provide stronger leadership.

For years councils have been asking for better guidance and stronger central government direction on a range of issues.

To fix this, the Government has revived the use of historically underutilised tools available to us under the RMA in the form of National Policy Statements and National Environmental Standards.

In the past year we have completed three national policy statements and are currently consulting on a fourth. That compares to just one in the 1990s under National and one under the nine years of the previous Government. We have introduced water metering regulations and revised the air quality standards, and are weeks away from concluding a national environmental standard for contaminated soils. I would also expect the potential for NESs to be part of the next phase of work on water reform.


The 2009 amendments were part of the first phase of the Government’s resource management reforms. We are now well entrenched in the details of Phase II which deals with more complex issues.

The aim here is cost effective delivery of good environmental outcomes. Real progress has already been delivered in several areas of Phase II.

We recently enacted legislation to reform the restrictive laws that existed around aquaculture management. It balances aquaculture development with other uses of the coastal space. I am confident this move will support our aquaculture industry to fulfil its potential as a billion dollar industry by 2025 while maintaining essential protections for the environment.
As mentioned, the EPA is up and running as a standalone Crown agent and is providing effective, efficient and transparent co-ordination of environmental regulation.

It is gearing up to become the consenting authority for development activities within New Zealand’s Exclusive Economic Zone and wider marine environment, once the Government’s new Bill to manage the environmental effects of activities in New Zealand’s oceans passes into law.

LAWF and fresh water
An important part of the Phase II work programme is fresh water and the collaborative approach taken through the Land and Water Forum.

We all know that progress on fresh water reform in New Zealand has been stalled for too long because of highly polarised positions.

The Forum has been successful in bringing together the rural sector, environmentalists, recreationalists, industry and iwi to develop an agreed way forward. The progress has exceeded my expectations.

Already the Government has announced several initiatives as part of our Fresh Start for Fresh Water package.

These steps are just the start.

Recently David Carter and I announced an ongoing role for the Land and Water Forum in the next stage of policy work on setting limits on water quality, quantity and allocation. We will receive their advice in 2012 on the next steps for water reform in New Zealand.

Urban and Infrastructure
Improving infrastructure delivery and urban planning and design is a key priority for the Government in Phase II of the resource management reforms.

For New Zealand to make economic progress, urban environments need to be not only functional, but the kinds of places people want to work, live and play.

Officials will be reporting back to me in early 2012 on a range of policy options to support improved urban and infrastructure planning based on the Technical Advisory Group reports and subsequent public consultation.

This work revolves around increasing central government direction, addressing practice issues across urban planning, and improving the approvals processes for infrastructure projects.

Auckland Spatial Plan
You will also be aware that Aucklanders are now commenting on their draft Spatial Plan.

The Spatial Plan has the potential to improve Auckland’s economic performance, as well as its urban form and liveability. It will play a key role in contributing to New Zealand’s economic, environmental, social and cultural prosperity.

Greater certainty about future land supply is crucial. I am looking forward to hearing more detail about how some of the goals, such as more intensive housing development, will be achieved. Despite some commentary that the Government and the Auckland Council are at odds over this issue, we are working well together on ensuring decisions are evidence based and well informed.

It is my expectation that the Auckland Council will use the full range of tools to manage growth, including appropriate land-use regulation and economic instruments, to provide Aucklanders with choice and certainty.

I have also asked officials to consider the role that spatial planning can play outside Auckland, so that there is better integration, less complexity and greater certainty around resource management decisions.

A further dimension to our Phase II work is our heritage and archaeological consents. Earlier this week the Government introduced the Heritage New Zealand Pouhere Taonga Bill, which will significantly improve the efficiency of the archaeological authority resource consenting processes and makes sure processing timeframes line up with those in the Resource Management Act. It is planned that this Bill be progressed through Parliament next year.


I finally want to reflect on the tumultuous events in Christchurch over the past year and their implications for resource management law.

A big question, given the scale of damage to thousands of homes from liquefaction, is how robust the processes were in assessing this natural hazard risk. I had heard various rumours about what level of knowledge existed on the risk of liquefaction at various times and on the timing of approvals for various subdivisions.

This issue matters and decisions need to be well informed. That is why the Government commissioned a fact finding report specifically on what was known and what was considered about liquefaction and lateral spreading risk in the development and consenting of Christchurch’s eastern suburbs and Kaiapoi. I am this afternoon releasing that report with Earthquake Recovery Minister Gerry Brownlee in Christchurch.

The risk of liquefaction in a reasonably expected earthquake event was first noted in official documents in 1977 but only in broad terms. An EQC funded study in Christchurch in 1991 was very specific on the significant liquefaction risk in Christchurch with clear maps that are uncannily accurate on where liquefaction would occur. The GNS study published in 1992 was equally clear of the risks. An even more specific study was published in May 2004 for Environment Canterbury by Beca Carter.

The fact finding report finds that this information was non-existent in the zoning and consent decision making with the developments of these areas even after 1991. It is even more concerning that consents were being granted post-2004 without any regard for this significant and by then well documented risk.

The report shows that most of the areas in these eastern suburbs were zoned for residential development in the 1960s and 1970s. Land Information Memorandum included a broad, generic statement on liquefaction after 2005 in Christchurch. Waimakariri had supplementary information on its LIMs from 2001.

I am less concerned about the planning and development decisions prior to 1991 that make up 80% of the 6000 red zone properties. What is concerning is that a significant number of resource consents covering about 20% of the severely liquefied properties in Christchurch were approved after the quite area specific reports from EQC and GNS.

The story in Kaiapoi is not quite as problematic as the studies there were not as explicit about the areas at risk of liquefaction until late 2000. But here too consents were granted after this knowledge was known without any consideration of this risk.

In total, about 80 resource consents were granted covering 1200 sections, or a fifth of red zoned areas, when specific information existed about this liquefaction risk but which was not considered. The RMA has failed these hundreds of property owners who could have been saved huge anguish had these risks been properly considered and mitigated.

All sorts of issues were canvassed in these consents consistent with the section 6 requirements of what decision makers are required to recognise and provide for and section 7 matters they must have particular regard for. These sections give great priority to natural character, landscapes, flora and fauna, public access, as well as cultural and heritage issues. Regard had to be given to the well being of trout and salmon, climate change and amenity values but not to the risks of natural hazards like earthquakes.

I can’t help conclude that those hundreds of families in Christchurch would have much preferred a little more attention was given as to whether these sections were safe to build their house on. These provisions need regrounding back to the practical issues that are important and relevant to resource consenting.

This is not just important to preventing other families in the future being traumatised by giving greater consideration to the risks from natural disasters. This issue impacts on all New Zealanders’ availability to insurance and how much we pay. We are a young, geologically active country with significant risks. We need to better manage these risks in the future to keep insurance affordable for both families and businesses.

The Government intends doings this by amending the RMA to give natural hazard risks greater weight. Today I am announcing a formal review of sections 6 and 7 to address the detail of how this can best be achieved. The work also picks up on suggestions for change to these sections by the work of the urban design and infrastructure technical advisory groups.

I did consider just adding another item to these sections. That has been done previously with heritage and climate change, but is a rather piecemeal approach to reform. The advice from members of the TAGs on urban design and infrastructure was although they too recommended adding new items; a more comprehensive review of these sections was overdue.
The Government is explicitly ruling out any changes to the purpose clause, section 5, and the Treaty clause in section 8. We do not believe these warrant change and are sufficiently broad to enable these concerns to be addressed.

The review terms of reference also refers to the Government’s desire to incorporate the few remaining provisions of the 1908 and 1941 Acts over river controls, drainage and soil conservation.

To achieve this I am commissioning an independent technical advisory group headed by barrister and former RMLA president Alan Dormer, and consisting of seven other experts in resource management law and natural hazard risk management. The TAG will report back to the Government by March.

The work cannot be disconnected from other important Phase II work streams that will be progressing in parallel. The work on water is particularly important and we will want to consider the latest reports from the Land and Water Forum. We will want to consult on any changes with iwi before making decisions. We appreciate that changes to Part II of the Act are important, and need consultation and careful consideration.

Our intention is for a RMA reform bill, incorporating the latest work streams from Phase II, to be introduced to Parliament next year.

In conclusion, my ambition has been to make a practical contribution to improved natural resource law in New Zealand with an objective of minimising bureaucracy and maximising economic and environmental outcomes.

I am encouraged by progress made to date. I want to particularly thank the team from the Ministry and the good rapport we have with the Resource Management Law Association. It has been a privilege to work with you as Environment Minister over the past three years.