UFNZ position on the Resource Management Amendment Bill

By United Future leader, Peter Dunne, and Environment spokesman, Larry Baldock, MP

United Future played a key role in bringing the Resource Management Amendment Bill (No2) into Parliament in its present form for its first reading last week.

By getting this important piece of legislation moving again at last, and by ensuring it is in a form that represents a gain for some of those who deal with the Resource Management Act, we have made a significant achievement. We freely acknowledge that we didn't get all (or even most) of what we wanted in the Bill, and that there is plenty in it that we disagree with, but on balance it is a definite improvement on the status quo.

Even the most critical business commentators over the past few days have grudgingly admitted that the Resource Management Amendment Bill represents at least some improvement over the status quo. While they rightly point out that the Bill does not go nearly far enough, they also acknowledge (to illustrate their point) that the improvements the Bill does make will mainly benefit small businesses.

The reason gains that only benefit small businesses (as well as private individuals and families) actually represent a significant achievement - and as business commentators are usually, and correctly, at great pains to point out - is that small businesses are the engine room of New Zealand's economy. They make up over 99% of the total number of enterprises in New Zealand, and employ over 60% of the workforce [1]. Surely any piece of legislation that helps these types of businesses must be a good thing?

There are two key aspects of this Bill that were pivotal to our decision to support it in its current form. The first is the reintroduction of clauses that allow limited notification of resource consent application for activities with no more than minor effects. The second is the removal of clauses that would have meant that the Environment Court would have to hear appeals on council decisions not to notify a resource consent application.

The limited notification category for activities with minor effects will give (mostly) individuals, families and small businesses the freedom to make small improvements to their properties without being subjected to crippling amounts of red tape. The purpose of the RMA is to protect the quality of New Zealand's environment, so there is no gain to be made by subjecting people who want to do things that will have very little impact of the environment to frustrating extra administrative costs and delays. It's just not common sense!

Also important to United Future was removal of clauses from the Bill that would have meant the Environment Court would have to hear appeals on council decisions not to notify a resource consent application. We have reached an understanding with the Minister for the Environment that the first step to improving RMA outcomes is to reduce the backlog in the Environment Court (through this Bill and through later legislative and non-legislative reforms). The clauses in question, if allowed to remain in the Bill, would have run contrary to this goal by seriously adding to the workload of the Environment Court and increasing the backlog of cases rather than reducing it.

There are several other clauses in the Bill that also made us more inclined to support it in its current form. Positive contributions to reducing the backlog in the Environment Court include clauses that allow for the expansion and simplification of procedures for preparing national environmental standards and national policy statements. If such amendments result in the greater use of national environmental standards and policy statements they could, by clarifying and reducing potential arenas for dispute, reduce the number of cases that end up in the Environment Court in the first place.

There are several other minor clauses in the Bill that will also make a further, positive contribution to reducing the Environment Court backlog by streamlining and clarifying RMA processes - thereby reducing administrative timelines and various sources of duplication and confusion.

The elements of the Bill discussed above are the positive contributions United Future believes the Resource Management Amendment Bill (No2) will make to the important (and urgent) process of reforming the RMA. However, we are also aware these measures are just a first step. There are plenty of amendments that we were unable to persuade the Government to include in this Bill, and there are plenty of amendments the Government did include in this Bill but which we strongly disagree with.

One part of the Resource Management Amendment Bill (No2) that United Future is particularly unhappy with is the removal of the power of the Environment Court to require security for costs from individuals or groups it considers vexatious. This is not a power the Environment Court has used often - in fact in its entire history it has only required security for costs from objectors approximately seven times. The point that concerns us is the symbolism. Where is the protection for property owners and business people? It is them who bear the cost of ongoing delays and litigation when an individual or group lodges appeal after appeal against their development for what the Environment Court acknowledges are spurious reasons at best.

Supporters of the removal of the Environment Court's power to require security for costs often point out that the Environment Court will still have the power to award costs at the conclusion of a hearing as it sees fit. However, in such cases redress may still not be possible because the individuals or groups concerned often do not have the money to pay such costs. Therefore, we believe this power should be retained in the Environment Court as both a backstop and as a sign that the rights of property owners are being considered.

United Future is also highly critical of the expansion and strengthening of the scope of RMA heritage provisions that is provided for in the Bill. We would prefer to see the definitions in the Bill narrowed to focus more closely on tangible biological and physical factors rather than being broadened to encompass even more intangible factors. It represents a potentially serious inroad on private property rights and is an example of fuzzy, Green style thinking. It remains to be seen what the actual effects of this will be, but we will be monitoring the situation closely and will be calling for a repeal of those provisions if property rights do suffer as a result.

United Future has several other proposals, many inspired by the original Simon Upton Bill and the "McShane Report", that the Government has promised to consider but which they were unwilling to incorporate into the current Bill. We are hopeful of making some progress on these in the next phase of RMA reform, which will begin immediately upon the current Bill being passed into law.

One of these proposals is a provision to make consultation with landowners mandatory before any binding changes affecting land use on their property can be implemented (such as designating part of someone's farm a Significant Natural Areas or wähi tapu).

We would also prefer to see all statutory powers taken from the Historic Places Trust (leaving it in a purely advocacy role) and incorporated into the RMA. This would streamline the RMA's heritage processes and remove unnecessary duplication.

Another proposal we have on the table is to add a provision allowing direct referrals to the environment court for projects of national significance such as roads or electricity generation facilities.

The importance of the direct referral provision, while it would be a significant improvement on the status quo, should not be overemphasised. The upcoming Land Transport Management Bill, for example, is of far greater significance for the future of road building than the RMA. That Bill ostensibly (at this stage) addresses the true bottleneck slowing new roading development, and that is the provision of adequate funding.

Horror stories such as it taking seven years to get resource consents to extend Auckland's motorways notwithstanding, there is evidence emerging that better planning and consultation procedures by local authorities could also play a role in reducing the incidence of long and expensive delays to major roading projects. For example, significant new roading projects in Tauranga recently received resource consents without any objections or other RMA related delays occurring at all.

The same is true of electricity generation. Obviously it is important to remove any potential roadblocks to the future commissioning of electricity generation projects, but we also note that often blame is attributed to the RMA where none is deserved. For example, claims that the looming shortfall in electricity generation capacity this winter can be partially attributed to RMA related delays in constructing new gas fired generating capacity are nonsense. Electricity generators Contact and Genesis both have the necessary resource consents to build new gas fired generation plants already, but they have to wait until gas contracts are available from the new Pohokura field before they can go ahead. The availability of gas contracts in turn has been delayed by Commerce Commission concerns about competition in the gas industry - a final decision on which is not due until July - not t

Although we did not get everything we wanted in the Resource Management Amendment Bill, it still represents a positive step forward. The passage of the Bill through the House in its current form therefore represents a major achievement on our part. Without our advocacy and support, any progress on reforming the RMA would at best have remained at a standstill (as it has been for years) or, very possibly, have actually suffered a significant reversal at the hands of the Greens.

The Greens do not support the Resource Management Amendment Bill in its current form. They object to the limited notification provisions and the removal of clauses allowing council decisions not to notify resource consents to be appealed to the Environment Court. They doubtless also had plenty of proposals for making the RMA even more inflexible and biased towards environmental and anti-developmental groups at the expense of private property rights and business development.

At their hands, instead of seeing the significant, if small, improvements to the RMA this Bill makes, we would have seen a significant reversal.

Alternatively, if it did not wish to capitulate to the Greens but did not have United Future's support, the Government could have ignored the Greens and simply retained the status quo. This is what occurred during the last term of parliament. In words, there would have been NO improvement, and no platform for making further improvements.

When it comes to a piece of legislation as pervasive and contentious as the Resource Management Act, progress is bound to be painstaking and has to be undertaken one step at a time. In the eight months since our seven new MPs were elected and decided that reform of the RMA was a key priority, we have worked closely with the Government on this issue and have achieved that much needed first step.

The RMA reform process does not end here. The passage of the Resource Management Amendment Bill into law will establish a sound platform from which further reforms can be undertaken. We will work closely with the Government on the proposals discussed above as well as other measures in the coming months. Our focus will be on the impediments the RMA poses for New Zealand's economic growth, but at the same time we won't lose sight of the purpose of the RMA, which is to protect the quality of New Zealand's unique environment. Economic growth and environmental quality are not mutually exclusive goals, and United Future will continue to work towards sensible, common sense solutions to both.

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