IMPROVING PRACTICE UNDER THE RESOURCE MANAGEMENT ACT

  • Simon Upton
Environment

ONEHUNGA

There has been quite a lot of comment about the Resource Management Act in recent times. Much of it has been either sweeping and general, or highly anecdotal. It's easy to comment in those terms. It's a little harder to generate such easy solutions. I have neither easy solutions nor the luxury of sweeping broadsides available to me.

Few people would disagree with the broad goals of the Resource Management Act. While the average Kiwi would prefer to deal with authorities as little as possible, few really want our country to become an environmental 'wild west'. New Zealanders want an environment with air you can breath, rivers and coastal waters you can swim in and soil that your children can play in without the threat of becoming ill. What is more, we want those values on a sustainable, long-term basis and that means taking account of the ecological integrity of resource use.

The Resource Management Act is fundamentally about securing these sorts of outcomes - not overnight but sensibly through reasonable and practical policies and plans.

The key question is this: is the Act being implemented as well as it can be, on the ground? If the credibility of the Resource Management Act is suffering that is primarily, I think, because those who are charged with pursuing these sorts of environmental goals - city, district and regional councils - have too often adopted approaches that are simply out of date in the de-regulated environment of the late 1990s. The quality of environmental regulation that is being served up doesn't match the quality of the environmental outcomes that are being sought.

The concerns you and I hear about the RMA are, 95% of the time, actually about practice under the Act, although the complainants may not immediately recognise this fact. As I said, people would not disagree with what councils fundamentally are trying to achieve, but an awful lot would disagree with the way some authorities are going about doing it.

Variability in council performance is to some extent the price you pay for more flexible, locally oriented legislation. The RMA isn't a prescriptive statute. A huge amount is left in the hands of elected representatives and their staff, with their main constraint being the specific requirement to consider the costs, benefits and effectiveness of the methods they employ ("section 32 analysis").

Any thorough scrutiny of the quality of regulation under the Act must extend to whether non-regulatory means would, in any given instance, be more effective and efficient. I for one suspect that there has been a great deal of poor quality and unnecessary regulation and too little consideration of non-regulatory alternatives. But you can't legislate for practice issues such as this. No amount of tinkering with the legislation (or even substantive review) will make someone change the professional habit of a lifetime.

For this reason I haven't embarked on a fundamental review of the law. I have, rather, embarked on a fundamental review of practice under the Act, with a view to extracting some big improvements. I firmly believe that this will yield much greater benefits than any grand philosophical navel gaze - and that's exactly what any legislative review will degenerate into.

The move to a more market economy has led people to take a much closer interest in their property rights. That's a healthy thing. Inevitably, the way in which regulations cut across those rights is being subjected to greater scrutiny. Again, that's fair enough. But I'm a little concerned that some commentators are starting to talk as though the RMA represents a new regulatory code that was imposed from nowhere on pristine and inalienable rights that have never been in any way truncated. Some talk as though we have just left behind a golden age. That's a myth. The RMA replaced a thicket of regulation and legislative prescription that was far more intrusive.

It is worth reflecting for a moment on one of the main pieces of legislation the RMA replaced and asking what new requirements has the Act placed on councils and by implication onto landowners and resource users?

Most of the gripes about the RMA relate to district planning matters so let's look for a moment at the Town and Country Planning Act 1977 (TCPA) which required land-use planning before the RMA.

The TCPA contained 'matters of national importance' just as the RMA does. These included:

the conservation, protection, and enhancement of the physical, cultural, and social environment;
the wise use and management of resources;
the preservation of the natural character of the coastal environment and the margins of lakes and rivers and the protection of them from unnecessary subdivision and development;
The avoidance of encroachment or urban development on, and the protection of urban development on, and the protection of, land having a high actual or potential value for the production of food;
the prevention of sporadic subdivision and urban development in rural areas, the avoidance of unnecessary expansion of urban areas into rural areas in or adjoining cities; and
the relationship of the Maori people and their culture and traditions with their ancestral land.
The purpose of planning under that Act was defined as:

...the wise use and management of the resources, and the direction and control of the development of a region, district, or area in such a way as will most effectively promote and safeguard the health, safety, convenience, and the economic, cultural, social and general welfare of the people and the amenities, of every part of the region, district, or area. (Section 4 T&CP Act)

As you can see, giving councils the power to interfere in the way people and communities use resources is hardly a child of the Resource Management Act. The old order not only attempted to control environmental effects, it also pretended that councils had the wisdom to make environmental and social decisions on behalf of people. That has gone despite the attempts to keep it alive by some recidivists, including lawyers specialising in the use of planning law to frustrate competition.

But many of the issues that continue to arouse concerns today are the very same issues that aroused concerns under the previous legislation.

Controls or lack of controls on infill housing, landscape and bush protection and rural subdivision control all pre-date the RMA as vexatious issues.

Similarly, those who complain about poor practice, expense and delays under the Act have a very short memory if they think such complaints are new. A review of the 1953 Town and Country Planning Act was prompted by the high perceived costs to developers, affected groups and individuals and national, regional and local government in complying with the legislation. These costs and delays remained a concern under the 1977 Act and sparked the Hearn Report which marked the genesis of the Resource Management Law Reform process ultimately resulting in the legislation we have today - Resource Management Act.

The fact is that statutes concerned with resource use are, by definition, all about resolving conflict between private property rights and the so called "public good". The "public good" is more narrowly defined under the RMA to focus on environmental matters whereas under the TCPA the public good was a much wider and more nebulous socio-economic goal. Nevertheless, conflict resolution is at the heart of the RMA as it was at the heart of the legislation it replaced. It would be remarkable indeed if from time to time this conflict did not bubble to the surface.

No amount of legal reform can remove that conflict. But we can improve the way in which that conflict is handled by those who exercise powers under the Act. That is why we have allocated a further $1.8 million over three years to improve practice under the Act. I have put together a comprehensive programme of case studies and practice guidelines. The main elements of this programme are:

Survey of local government performance
A survey of all 84 local authorities has already been undertaken to ascertain councils' performance in carrying out their resource management responsibilities. The survey asked questions about the time councils take to process consents, what processes they use and what their charging regimes are. The data collected from the survey will be used to develop a scorecard of local government performance that will help to identify examples of good and poor performance.

Surveys have limitations however and it would be inappropriate to restrict investigation to this approach. This why the Ministry for the Environment will also be undertaking a number of case studies. Three of these case studies have already been confirmed. These are:

Time/cost delays
This study proposes to evaluate the specific ingredients of resource consent processing that make the most significant contributions to delays and costs. Agreement has been reached to utilise a Telecom database of 300 consent applications. This will provide a database of homogeneous applications that will enable analysis of a random selection of 80 applications for the target factors of timing and cost components. A final report is required by 30 June 1998. I would like to thank Telecom for providing vital material that will give us an objective picture of what is happening across the country.

Land clearance controls
This case study is intended to investigate the widely differing approaches to achieving management of adverse effects on erosion prone land. The project is expected to involve regional councils, forestry companies and farmers. The primary objective is to look at past, current and proposed rules and approaches to minimising adverse effects and identify good and poor approaches. The underlying goal is to promote good practice and ensure that the approach adopted clearly recognises that the level of regulation should be consistent with the level of potential adverse environmental effects that are to be managed. Results are to be reported by 30 June 1998.

Subdivision Issues
This case study is intended to address concerns about the variable approaches being adopted in the processing of subdivision applications. The intention is to undertake an analysis of current practices in selected councils. The second step is to develop, using the best practice being applied around New Zealand at present, a best practice guide. This would then form the basis of an education implementation strategy to encourage the adoption of more effective means of considering subdivision applications by local government. A final report will be available by 30 June 1998. At present it is expected that the substantive work would be completed by January 1998.

A further case study looking at an urban issue has yet to be confirmed.

The programme also contains a number of proposed training packages for councillors and others on pre-hearing processes and notification issues.

The programme contains a number of other initiatives that have yet to be finalised. The most important, for me, is a careful analysis of the effectiveness or ineffectiveness of section 32 of the Act. In a nutshell, section 32 demands that rules and regulations have to be necessary to achieve that purpose of the Act, and should be the least cost means of achieving the environmental outcomes sought. While I'm not in the heroic camp that believes we can live in a world without regulations, I'm quite certain we can develop much less costly regulatory tools. In fairness to councils, this is a complex area that will probably require central government assistance. After all, some of the Government's own regulatory interventions have been none too flash, and we need to share our own experiences in regulatory reform with others. Clearly a part of this work will focus on the potential applications of non regulatory approaches to achieve desired environmental outcomes.

While the results of most of this work are still several months away a recent survey of 73 businesses commissioned by the Ministry of Commerce provides a useful reference point. In many ways the survey (undertaken by Ernst and Young) confirms what many of us already suspected - that the business sector generally endorses the RMA's intent and philosophical basis but that there are implementation problems and there is plenty of room for improvement on practice issues.

The report reaches a large number of conclusions not all of which I will repeat here today. But let me give you a taste of some of the positives (from an environmental sense) and some of the negatives.

On the positive side the report concluded that businesses generally felt that the RMA had been effective in:

making environmental responsibility a priority for their business;
encouraging good management practices; and
providing incentives for risk management.
Businesses felt that the Act had not been effective in improving profitability or contributing to marketing advantages - but then again that isn't the purpose of the Act.

On the negative side many business felt that the Act had not been effective in:

improving timeliness for consent processes;
dealing with frivolous objectors;
employing cost minimising approaches; and
improving the accessibility of planning documents.
As I said such results will not come as a surprise to anyone who has been following the issue. But the results certainly do not provide a mandate for starting all over again with the uncertainty and delay that would imply.

There were other messages in the results for government, both central and local. For example, businesses perceive a need for:

clearer standards and guidelines for administrative processes under the Act
local authorities to learn from each other so as to effectively amalgamate, rationalise and economise on resources, issues and processes relating to resource consent processes
clearer guidelines for iwi consultation
clarification of the responsibilities of district and regional councils
Similarly, businesses' experience with consent authorities included:

variation in performance across councils;
lack of sensitivity to, and understanding of, commercial requirements;
assistance (or lack of assistance) with minimising costs;
effectiveness (or lack of effectiveness) in facilitating consultation;
disparities in the adequacy of information provisions and the respective cost; and
reasonableness of local council charges.
All these findings lend support to the sort of programme already commenced by the Ministry for the Environment. In short they identify black spots issues that can be significantly improved.

As the first systematic survey of how resource users are finding the RMA, the Ernst and Young report provides a salutary lesson. That is, anecdotes, no matter how loudly or often they are repeated, are still only anecdotes. What we have to do - and have started to do - is identify failings in practice that can be swiftly put right. They are problems that stem from the way ordinary people working in councils, sitting on hearings committees, and submitting applications go about their business. There are ways to get good results under the Act and there are ways to make it fail. We have to identify the best ways to make it work and make sure that these techniques, processes and attitudes are adopted by all those involved.

Finally, there's a need to explore completely different resource allocation tools (like tradeable permits) and environmental charges. Regulations generate one set of incentives; property rights generate other incentives. There is growing interest in the use of property rights to allocate scarce resources, like water, in much the same way we've developed our fisheries. It's not something that could be attempted overnight - there are important Treaty of Waitangi implications and huge technical and information requirements needed to allow for trading within environmentally sustainable limits. But as our resource use intensifies, such tools cannot be ignored. Bureaucratic techniques that cannot keep up with rapid technological and commercial change will be quickly devalued - and the all-important goal of better environmental management with them. No environment Minister will be allowed to let that happen.