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Upton Speech - An RMA Review Update

HON SIMON UPTON
THE RMA REVIEW - AN UPDATE
PROPERTY COUNCIL OF NZ CONFERENCE
FRIDAY 6 AUGUST 1999
CENTRA HOTEL, AUCKLAND


I note that the flyer for this session of the Conference states that "The RMA has vehement critics and supporters. However one thing both groups agree on is that the Act is not acting as intended."

I consider this is an overstatement. The RMA has secured important environmental gains. People quickly forget how complicated life was under the old regime. Resource management (or town planning) issues are often controversial, particularly where one landowner wishes to maximise their benefit while their neighbour and often the community wants to preserve the status-quo. Councils are caught in the middle and often attract criticism from all sides. The very people who want no controls when they are building, are keen to protect their investment through regulation once it is completed.

That said, no-one would claim the Act is perfect. There is always room for improvement.

The Ministry for the Environment has been producing good practice material on the Act and hard data on how councils are performing through its annual survey on local authorities. This work is continuing. However, I decided we needed to review the Act itself. After eight years of experience, we asked, were there aspects of the Act that could be improved?

The result of this review is the Resource Management Amendment Bill 1999. It was introduced into Parliament on 13 July 1999. Submissions can now be made on the Bill to the Transport and Environment Select Committee. Submissions close on Friday, 1 October 1999.

I propose this morning to outline the evolution of the Bill and summarise its key features.

During the eight years the Resource Management Act has been in place there has been a tremendous amount of effort put into moving from the old system to the new. In many areas covered by the new legislation, this transition has actually proceeded remarkably smoothly.

Most of the concern about the Act has focused on land use and subdivision controls. There is room to improve practice and procedures. We needed to reduce duplication, uncertainty and the costs of compliance, while being careful not to undermine the environmental purpose of the Act.

I invited Owen McShane to write a provocative piece on the Act and had it peer-reviewed by three commentators, including Ken Tremaine. That reported attracted some 750 submissions. I also established a Reference Group of practitioners to report to me on amendment ideas. All that information led to the Proposals for Amendment document which outlined the amendment proposals and possible wording. That document attracted a further 750 submissions. It led to the refined proposals in the Amendment Bill.

I've been criticised for taking too long over this review. No doubt, I would have been lambasted for "rail-roading" the reforms if I had been faster. I make no apology for the process of exhaustive consultation. This legislation is carefully worded. It is subject to minute daily inspection by planners, lawyers, councillors and many others. There is now a growing body of case law which has aided interpretation. We want to be certain any changes will lead to improvements.

On a more pragmatic note, I could have "rail-roaded" all I liked, but at the end of the day any Bill would still require 61 votes in the House. In a MMP environment with a minority government, I need to rely on strength of argument to convince my fellow MPs to enact legislation. Even after this long deliberative process, Labour, the Alliance and the Greens (together with Chris Fletcher and Neil Kirton) voted against even sending the Bill off for select committee consideration.

Clearly the Bill is unlikely to be enacted before the election. But the hard work has been done and I'm confident rapid progress can be made after the election. Virtually all the proposals in the Bill have been thoroughly discussed and the Select Committee process should simply be one of further refinement.

The amendment proposals fall into six broad categories:

1. Amendments that clarify existing provisions.

The Bill introduces a new definition of the term "environment". It is a critical definition as the Act is largely about the avoidance, mitigation and remedying of adverse effects on the environment. The current broad definition of "environment" leads to the circular interpretation of the purpose of the Act, and cannot be considered good law. I don't think anything is excluded by the existing definition of environment and that makes the RMA an Act about absolutely everything.

If we are to have coherent environmental management legislation that is effective at securing good environmental outcomes - at least cost - we need a sharper focus.

The definition has allowed trade competition arguments to flourish. It has also been used by some as a platform for the sort of comprehensive social and economic planning that the RMA was designed to leave behind. The breadth of the definition has fuelled legal argument that has done nothing to advance the purpose of the Act.

The new definition, with economic and social considerations removed, will reduce this problem. It's closer to the ordinary meaning of the word "environment" and allows a more coherent interpretation of the purpose of the Act.

The respective functions of regional and territorial councils under the Act have been clarified. In particular, the ability of regional councils to duplicate and dictate to territorial authorities over land use controls is constrained. This should reduce disputes between councils. In addition, the ability of councils to transfer functions between themselves is simplified

2. Amendments that aim to reduce points of leverage.

Limited notification is introduced. This is a new 'half way house' between full public notification and non-notification of resource consents. For applications where the effects are minor, councils will notify applications only to those parties identified as being affected and who declined to give their approval. Currently, if an affected party declines to give their consent the application must be fully publicly notified with the inherent delays and costs, especially if trade competitors suddenly decide to protect important environmental values by opposing the proposal.

As a safeguard, the more flexible notification procedures will be accompanied by a new ability for the specialist Environment Court to scrutinise decisions on notification of consent applications. However, it should not be seen as opening the floodgates. I am sure the Court will not tolerate abuse of this right of review and will exercise discretion in deciding whether any flaw in notification justifies starting again.

The Bill provides for people other than councils to process resource consent applications, provided they are approved to do so by the relevant council. Much as been said about contestable consent processing over the past months. I will make just three points:

 Processing of resource consents by consultants is not a new concept - councils already farm out about 8,000 consents to consultants for processing.

 Private processors must be the contracted agents of local authorities. They will work for the council. The council will pay them.

 Contestable consent processing will generally not be cheaper for applicants in terms of direct processing costs, but it could be considerably quicker and more responsive. This could mean that holding costs and other indirect costs could be dramatically reduced. In addition, there may be some incentive on councils to improve their practices.

I think the amendment will satisfy many of the concerns while preserving the advantages provided by giving applicants a choice.

The Bill places the onus more squarely on the applicant to supply appropriate information with an application. There is a new power for councils to reject deficient applications. Once it has accepted an application, however, the power of the council to go on demanding further information is constrained. Applicants can now refuse to supply further information or allow the council to commission reports and demand that a decision on the application be made.

3. Amendments that seek to reduce procedural costs

The Bill provides for the direct referral of complex or contentious resource consent applications and designations to the Environment Court. The local authority will still play an important role in reporting on the application and submissions to the Environment Court.

The matters that must be considered in making decisions on resource consent applications are simplified. At present commissioners, councillors, council officers and the Environment Court (on appeal) must consider a long list of matters. If anything is missed the decision may be flawed.

The Bill provides more flexible provisions for notifying consent applications through newspapers and allowing a summary of the decision to be distributed rather than the full decision (which can be hundreds of pages long).

The requirements relating to the lapsing and cancellation of consents are relaxed. The Act currently provides that consents lapse if not "given effect to" within just two years. Extensions are subject to strict tests. This is obviously unreasonable. The Bill provides a default lapsing/cancellation period of five years and provides greater flexibility for extensions.

The categories of resource consent (permitted, controlled, discretionary etc) are simplified with the removal of the non-complying category of consent. Such activities will now be treated as discretionary activities.

The break in working days over Christmas is reduced by two weeks to 25 December - 5 January. In addition a new time limit on councils of 10 working days to approve survey plans is introduced.

4. Amendments which ensure that regulatory intervention is efficient

Section 32 of the Act requires those who exercise functions under the Act consider the necessity for, and the costs and benefit of, the measures they propose in plans and policy statements. This Bill clarifies and simplifies section 32. It provides that a report, giving reasons supporting the conclusions of the evaluation, must be prepared and made available to the public. A new requirement is introduced for councils to report at least five yearly on its monitoring of the efficiency and effectiveness of its plans.

Amendments to the subdivision provisions of the Act are proposed to reinforce the message that controlling subdivision should be seen as one means of managing the adverse effects of land use activities and not something that has a purpose in its own right. To achieve that, the Bill includes amendments which:

 remove the control of subdivision as a separate function of city and district councils;

 reverse the presumption of section 11 so that subdivision is allowed unless a council includes rules in a plan controlling it;

 remove the prescriptive provisions over road frontage requirements in the Local Government Act and restrictions on subdividing hazard prone land in the RMA (section 106); and

 increase the lease term that qualifies as a subdivision from 20 to 35 years.

The effect of rules in proposed plans is reduced. Rules in proposed plans will generally no longer have immediate effect. They will only apply once they are beyond challenge. In addition, once they do apply, any former rule in the old operative plan will no longer apply.

5. The proposal for commissioners stands as a category on its own. It is fair to say that this proposal has been controversial within local government circles. I think unnecessarily so.

The amendment will enable an applicant, or a submitter, to require that an independent commissioner be appointed to hear an application. This does not reflect a view that elected councils are less than objective or professional. Rather, it is about designing a system where the impartiality of decision-making is beyond reproach. Whoever requests a commissioner can be required to meet any additional costs incurred by the use of a commissioner.

6. Heritage Amendments

These amendments implement recommendations arising from the Historic Heritage Management Review. The key change is to bring the archaeological consent provisions across from the Historic Places Act 1993 and integrate them into the existing land use consent provisions in the RMA. This will avoid the need FOR developers to provide information to two agencies under two different processes. In fact, I'm not sure how archaeological consent requirements escaped the RMA net in 1991.

Conclusion

I am grateful for the constructive and supportive input the Property Council (as BOMA) has played in the review process to date. The Council clearly represents an important sector that is in day to day contact with the Resource Management Act. I trust that you to make submissions on the Bill if you have views on it.

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