Improving the RMA

  • David Benson-Pope

Speech given to public meetings in:
Wellington, 20 September, 2004
Christchurch, 20 September, 2004
Hamilton, 22 September, 2004
Auckland, 23 September, 2004
Dunedin, 27 September, 2004

I guess the fact that you are all here today indicates that you share my view that the Resource Management Act is an important, and interesting, subject.

It seeks to achieve a balanced approach to the protection, management and use of resources. In doing so it promotes the concepts of sustainable management, of local decision making, and of communities being able to have their say about matters that affect them. And in doing so it creates controversy and debate.

I hope we all know there have recently been some great improvements in how the RMA works. In particular, better funding of the Environment Court has seen delays in the hearing of appeals slashed. The improvements will continue now that a case tracking system has been introduced, and the Court has leading-edge technology to improve the recording of evidence.

Local government has also made considerable improvements to the way the RMA works in practice. This was highlighted in the recent Business New Zealand/KPMG Compliance Cost survey which found that, compared to 2003 results, considerably fewer respondents included the RMA as one of their top three concerns. The report states that this may be because: “Improved implementation of the RMA by local authorities and increased resources for the Environment Court might be helping to reduce delays and costs.”

We want to build on these improvements. And there are more gains that can be made. Action can be taken to further reduce delays, eliminate unnecessary costs, and ensure full opportunities for participation by affected parties. I want to find more certainty of process for those seeking consents, but I definitely do not want to see the RMA’s ability to protect the environment watered down.

I think that the package we have developed through this review will result in practical improvements to the functioning of the RMA. These improvements will benefit everyone. I will talk about the proposals shortly, but want to give you a bit of background first.

As I have mentioned, there has always been considerable debate about various aspects of the RMA – whether it is good or bad at protecting the environment, whether it imposes too many costs on applicants, whether there is too much inconsistency between councils…Some issues arise from the very nature of the balance that the legislation seeks to achieve (and there will always be discussion at either end of the spectrum about this). There is a significant gulf between those who expect to do as they like on their own property and those who believe that the community must have a say if it may affect them or their environment. Some issues are highly exaggerated (or even myths) and some perceived problems have already been solved, but some concerns are based on facts.

So what are the real problems? Why did we review the RMA?

A number of issues were identified during consultation and through feedback on the RMA:
·People thought that there was not enough guidance about matters of national interest. They thought there should be more National Policy Statements and National Environmental Standards, and that central government should improve how it becomes involved in RMA issues.
·People felt that the plan making process takes too long, and that the documents themselves are unwieldy.
·There was concern about the time and costs involved in obtaining consents. People thought that there is too much uncertainty in the process, particularly about things like consultation. They also thought that some decision makers don’t have a high enough level of skills or knowledge to make hearings more effective.
·There were various issues raised in relation to the allocation of natural resources. Some local authorities haven’t developed sufficient plans to deal with these issues, and there are not enough tools available to do so effectively.
·Although improvements have been made, there are still implementation issues to be addressed. Sometimes individual councils under-perform, and sometimes problems are more widespread, whether because of insufficient guidance, a lack of resources, or poor processes.

Once the issues were identified, a process was set up that involved a number of government departments. Local government, through Local Government New Zealand, was involved from the start, and made an outstanding contribution to the final package. There has been careful consideration of a number of options; by officials, by myself and my colleagues, and by a reference group that I established to provide high level feedback during the review. Options have also been discussed with industry representatives and with environmental groups, and numerous submissions were received from around the country.

Well, after all that build up I’m sure you’re wondering what we’ve actually come up with. There has been a lot of speculation about what is in or out of the package. I want to clear a couple of things up before I get into the details.

First, changes to Part II are not part of the package. It was considered that other options would achieve the necessary guidance on nationally significant matters without disturbing the RMA’s core principles.

Second, the Environment Court will remain as a specialist body that is able to determine appeals based on their merit. However, there have been some changes which I think will result in more effective processes, both at the Environment Court and in council hearings.

The first area that we will be looking at is that of improving the expression of the national interest.

The RMA already provides mechanisms for expressing the national interest.

The past two years have seen National Environmental Standards developed for air quality, and dioxins and other toxins. A standard on sources of drinking water is also in the pipeline. These standards provide greater consistency for how activities are dealt with at the local level, and mean that councils don’t need to spend as much time producing their own approaches to common issues. They also improve certainty for landowners, developers, and the broader community regarding how proposals will be dealt with by the various councils.

These benefits provide compelling reasons for increasing the number of standards produced. And that is precisely what we propose.

We’ve done some thinking about possible subject areas. Standards relating to network utilities, biosolids, and contaminated sites have come up in discussion, but we’ll be looking at more details in the coming months. We’ll also be talking to people about other possibilities during the Talk Environment Roadshow in November.

We are proposing some changes to the RMA so that standards can better achieve consistency. Individual standards could specify whether they apply absolutely, or whether councils can set more stringent standards if this is necessary. The importance of setting environmental bottom lines will be a key consideration in deciding what is appropriate for each standard.

Another important mechanism that has definitely been under-utilised is the National Policy Statement. So far we don’t have any, other than the New Zealand Coastal Policy Statement. I see these as the key way of not only guiding decision makers and communities about significant resource management issues, but also for achieving the purpose of the RMA. However, there are some issues in producing these policy statements; in short – time, cost and effectiveness.

We want to see greater use of these statements, and we also want it to be easier for councils to implement them. A full board of inquiry process will be made optional, with the alternative being to conduct consultation as is required for national environmental standards. And a National Policy Statement will be able to specify whether it has direct effect - rather than every plan in the country having to be reviewed to give effect to it.

Along with giving increased guidance to decision makers, it should be possible for central government to provide more support for the process when proposals give rise to particularly complex or significant issues. We have responded to concerns that the current way for government to become involved in certain situations is rather blunt. At present, call in is the only option – it is either all or nothing. There are several important proposals that seek to change the way that government involvement, including call-in, is approached.

Under the proposed changes to the RMA, a council or the applicants themselves could request that the Minister for the Environment determine whether there is a national interest involved. The Minister could also decide to look at the situation. This will trigger a special consultation procedure with affected councils.

Through this procedure the Minister will consider what level of involvement from central government is appropriate. They will now have more options other than just to call in an application or leave it to councils – they will also be able to decide that the local process should be undertaken but with some form of assistance or input from central government. This will allow for the use of tools that are appropriate to the case:
-the government could fund an independent project coordinator to improve the capacity of the consent authority, and to ensure a fair and efficient process is conducted;
-the Minister could direct that applications be heard jointly by the different councils involved;
-the Minister could appoint a person to the council hearing panel;
-a government submission could be developed using a whole of government approach to provide input alongside other submissions; or
-the Minister could call in the application

If it is decided that call in is appropriate, the board of inquiry will be able to consider designations, heritage orders, and private plan changes, in addition to resource consent applications. They will make an interim decision for comment, and their decision will be final – notices of requirement will not be referred back to the applicant, and the Minister will not have a say at the end of it all. Furthermore, appeals will be possible to the High Court on points of law only.

This more flexible approach will mean that the government can provide better input and guidance where important or complex issues arise. It is not about giving certain projects a leg up, and it is definitely not about restricting the ability of communities to have their say. I think that the process, combined with more guidance through National Policy Statements and standards, offers a practical, realistic and balanced approach to matters that affect New Zealanders and their environment.

Next on the list of improvements are those being made in relation to the allocation of natural resources.

This is an area that involves complex and, frankly, quite technical issues. It is something that is being looked at in the Water Programme of Action, and in the future additional work programmes may complement this work – possibly by looking at geothermal energy and airshed allocation issues. At this stage, we have a few proposals that will reduce some of the current uncertainty:
-existing investment will be one of the factors to consider where there is an application to renew a consent involving the allocation of a resource;
-regional plans will be able to specify that discharge permits can be transferred;
-there will be a default rule (similar to the aquaculture reforms) that current consent holders will have the opportunity to have their application for renewal heard before a new, competing application for the same resource. Certain criteria will be considered, and councils will be able to provide alternative rules in their plans; and
-the Minister for the Environment will be able to require that a council develop a plan to address a specific resource management issue. This will include the ability to require the development of a natural resource allocation plan.

We want to see better planning for allocation issues. The additional tools that are proposed will allow regional councils to provide more certainty for developers and communities. Further proposals may emerge next year from the Water Programme of Action.

Which brings me to the issue of plan making.

I want to increase the effectiveness of the plan making process for all involved. Some of the key changes are:
·District and regional plans will be required to ‘give effect to’ regional policy statements in order to improve the integration of planning documents;
·Furthermore, there will be clarification that plans need only to include policies and rules - other matters will be included at the discretion of the council;
·The ability to make further submissions will be restricted to those people who are directly affected by the original submission;
·The use of pre-hearing meetings on planning documents will allow for better and earlier resolution of issues; and
·The Environment Court will refer local policy matters back to the council for consideration, with directions as appropriate.

In fact, there are a number of improvements proposed for hearing processes. These will impact on both plan making and resource consent processes, and relate to both the Environment Court and councils.

The changes aim to:
-First, clarify that processes should allow for early definition of issues, and for hearings panels or judges to take a more active role in running cases;
-And second, to avoid the duplication of hearings when decisions are appealed to the Environment Court.

To achieve these goals, councils will be able to require attendance at pre-hearing meetings. The hearings panel will be able to set out lists of agreed or outstanding issues, as well as the evidence that is to be called, and the timetable for the hearing. In appropriate cases, circulation of evidence might be required prior to the hearing, and the panel could control the order of hearings so that the main issues can be focused on. In limited circumstances the panel could decide to strike out a submission, for example if it was vexatious or frivolous.

Improvements to council hearings will mean that there can be a movement away from the current presumption in favour of de novo Environment Court hearings. Certainly the Court will be able to hear cases afresh in some circumstances but, in general, hearings will be focused on the pre-defined issues and existing evidence. This is increasingly the practice at the moment, but now it will be made clear that judges should have specific regard to the council’s decision as a starting point. Greater reliance on the evidence that was presented to the council will mean that there will need to be more evidence recording during hearings.

Another important proposal that will assist in implementing these changes is that, for consent applications only, council panels will be required to include people who are ‘accredited’. These people will have received training in hearings processes and other RMA matters. The initial aim is to have all hearing chairpersons accredited within one year and then, within two years, for this to extend to the majority of members sitting.

I think that these proposals reflect the importance of the RMA and the decisions that are made under it. There needs to be a level of certainty for those involved. But there also needs to be sufficient flexibility to deal with the various circumstances that can arise.

This does not mean a reduction in the importance of public participation. But there will be more clarity, for example about consultation requirements. In particular, that it is the council’s role to encourage consultation with affected parties, but otherwise that their obligation is to notify in accordance with the Act.

In terms of notification, it is proposed that the Environment Court be allowed to hear challenges to decisions to notify or not, thereby removing a current hurdle to scrutinising public participation. The Environment Court, as a specialist body, is better placed to consider questions about notification compared to the High Court, which is also a costly avenue for sorting out these issues.

There are also some particular proposals aimed at creating more clarity about the involvement of iwi in RMA processes.

I believe that certainty for Maori is certainty for everyone, and improving practice requires clear law. The review has identified that iwi needs to be more involved at the planning stage, with their views better provided for in policies and plans. There will be greater certainty regarding when iwi authorities should be consulted, which iwi authorities should be consulted, and how, and what the process and scope of consultation should be. To facilitate this, registries will be developed for identifying iwi, their tribal boundaries, and key contact details. Individual councils will be required to have a record of this information, as well as a catalogue of current iwi planning documents. Te Puni Kokiri will be required to assist in compiling these registries.

In terms of resource consents, once iwi authorities have been involved during plan making, Maori will have the same opportunities for input as others when they are an affected party.

We propose to clarify the requirements for central government to consult iwi during the development of national policy statements and national environmental standards. There will also be explicit provisions empowering the co-management of resources between councils and Maori.

With regard to improving implementation, we propose that guidance be provided about iwi engagement, and that work should be undertaken to improve the capacity of iwi to be involved in RMA processes.

There are also some broader initiatives proposed to assist local government and promote best practice.

This is not something I’ve tacked on the end here for the sake of it. Building up the ability for councils to implement the RMA is something that I strongly believe in and it is crucial to the Act operating effectively.

I want to work towards better co-ordinating the roles of existing entities that monitor and review council performance, or that handle specific complaints. These are the Office of the Ombudsman, the Office of the Auditor General, the Parliamentary Commissioner for the Environment, and the Ministry for the Environment. In particular, it is proposed that the Ministry for the Environment could take a stronger leadership role in implementing and monitoring the RMA.

This leadership has been shown in the pilot programme offering one-on-one assistance to local authorities in need of support. This programme is likely to be continued and expanded as a result of the review.

In terms of sharing best practice and providing guidance on RMA matters, the Quality Planning Website has come along in leaps and bounds – now boasting an impressive average of nearly 86,000 hits each month. Other ways of providing helpful information are seminars and publications aimed at various sectors or practitioners. Continued support and funding for these initiatives is part of the review package. And I also want to see initiatives developed that enhance the understanding of RMA users – not just those who are involved in the process on a daily basis, but business and other interested groups.

The practical changes that are proposed to the RMA are backed up by a similarly practical, hands-on approach to improving its implementation. The outcome of the review really is a comprehensive, and mutually reinforcing, package of improvements. And, with the continued goodwill of practitioners, it will result in benefits for all involved.

However, knowing the discussion typically generated by the RMA, I’m sure this package will be no exception. I expect to see a large amount of feedback. This can now be provided through the RMA website or by sending comments to the Ministry for the Environment by the 4th of October. I also expect to see a number of formal submissions to the Select Committee as we go through the process of introducing a Bill and conducting hearings. I hope that many of you will contribute to this discussion. Your input will help us to identify any unnecessary delays or other issues that the proposals may create.

Right now I’m happy to answer any questions, and some of the officials who worked on the review will also be available to talk to this morning.