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Cabinet warned that RMA changes could be costly

15 February 2004 - Wellington

Cabinet warned that RMA changes could increase costs

A paper considered by Cabinet as long ago as September last year warned that proposed amendments to the Resource Management Act could increase costs for developers, councils, community groups and ordinary members of the public who are affected by resource management decisions.

The 13 September 2004 Cabinet Paper, currently on the Ministry for the Environment website warns:

"Increasing the robustness of the hearing may lead to increased costs for all parties and increase local authorities' exposure to judicial review. Further, the New Zealand Law Society has expressed concerns that more formal hearing powers being given to the consent authority will unnecessarily complicate the first hearing process.

"Most of this Bill won't work and should go back to the drawing board. Developers, public interest organizations, community groups, affected citizens and local authorities will all face increased costs as a result of the changes proposed in this Bill," said Forest and Bird's Conservation Manager Kevin Hackwell.

Forest and Bird is welcoming the call from National Party Environment spokesperson Nick Smith for the Government to withdraw the Resource Management and Electricity Legislation Amendment Bill.

"We have thoroughly analysed the Bill and it is a dog," Mr Hackwell said.

"Local authorities will face major costs as they struggle to implement Ministerial edicts resulting from the 'I am God' clauses that give the Minister for the Environment unprecedented powers to interfere in local government," he said.

"Everyone will find that the resource consent process will become more expensive due to increased formality at the council level. Developers will find themselves paying for the extra council-level formalities such as transcribing hearings," he said.

"As most resource consent issues are resolved at the council level, the extra costs could be quite significant. Public interest groups and members of the community will face increased costs too. They may find they need lawyers to help them negotiate the new local authority procedures," he said.

"The only ones who might face reduced costs under this Bill will be central government and those developers that the Environment Minister favours with a new fast-track decision making process," he said.
"This Bill transfers costs onto everyone else while offering cheaper short-cuts for big projects proposed by the government and its mates," he said.

"However, we're disappointing that National is now opposing appeals on notification. Allowing appeals will ensure that people do not need to go to the High Court to ensure that major developments are publicly notified. The right to appeal notification decisions was a National Party proposal from the late 1990's which has languished under the present Government," he said.

"Forest and Bird supported Simon Upton's proposal to introduce appeals on notification because it would end the current abuse of process by some local authorities. Some councils unfairly shut people out of decision making by breaching the law and refusing to publicly notify significant developments," he said.


Cabinet paper is at

http://www.mfe.govt.nz/issues/resource/improving/rma-cabinet-paper-decis ions-sep04/cover-note.html

"I am God clauses"

In the Bill there are a series of clauses that offer new, and largely unrestricted, powers to the Minister for the Environment. Forest and Bird has labelled these clauses "I am God clauses" to reflect their 'omnipotent' character. The new powers share most or all of the following characteristics and are clearly open to abuse:

* Replicates a power that exists elsewhere in the Resource Management Act 1991 or some other Act, yet removes the checks and balances on the exercise of that existing power
* Transfers costs from central government to local government
* Provides central government generally, and the Minister for the Environment specifically, with a privileged status in resource management decision making
* Enables the Minister for the Environment to treat selected projects with a privileged status not available to most ordinary users of the RMA
* Has few or no checks and balances on the exercise of the new power

The main powers that fit this description are:

* New power to extract information from local authorities which makes no provision for flexibility in processing onerous requests, makes no provision for the protection of private or commercial sensitive information, and removes the role of the Ombudsman to ensure the public interest is protected and to protect local authorities against unnecessary or frivolous requests. Unlike the Official Information Act and the Local Government Meetings and Official Information Act, which this provision poorly replicates, local authorities will have to bear the cost of providing information (clause 6)
* New power to instruct local authorities to take any action in relation to their functions within a timeframe determined by the Minister. This clause replicates a range of methods currently available to the government to make sure that local authorities carry out their functions, but lacks any form of check or balance. Local authorities will presumably bear the cost of implementing the instructions If the local authority does not carry out the Minister's instruction within the time set by the Minister, the Minister can appoint an official to take over the local authority's functions (clause 6)
* New power to direct changes to resource management plans. This power replicates a range of powers already available to the Minister. The cost would appear to fall on local authorities, unlike the current process for changing a resource management plan where the applicant pays (clause 7)
* New power for the Minister to declare classes of activity permitted irrespective of environmental effects or of established district and regional plan rules or current resource consents (clause 20)
* Default 'absolute' national standards that prevent local authorities from setting stricter standards than the government except by way of an exemption (clause 21)
* New process for national policy statements that enables the Minister to bypass the current process in favour of any process the Minister likes (clause 24)
* New call-in process for major projects that the Government likes (or doesn't like), and which has no Environment Court Appeal right (clause 54)

Examples of non-notifications

Port Hills, Christchurch: An estimated 38 subdivision consents have been non-notified over one part of the Port Hills in Christchurch without public notification. The resource consents were granted after decisions had been made on the Christchurch City Plan, but before references relating to the issue had been resolved in the Environment Court. The non notified resource consents had the effect of nullifying the appeals that sought to protect the area's nationally significant landscape. The Christchurch City Council ignored legal advice that it should notify. A representative non-notification decision was judicially reviewed in the High Court and the Court found against the Council.

Wellington Harbour: A non-notified coastal permit was issued by the Wellington Regional Council to farm the alien invasive seaweed Undaria in Wellington harbour. Considerable resources have been directed to trying to eradicate Undaria from Stewart Island and Bluff. The spread of Undaria is New Zealand's worst marine biosecurity problem.

Kina Cliffs, Tasman District: Tasman District Council allowed a developer to shave off the top of the Kina cliffs (granting an earthworks consent to move 3m of soil) and dump the spoil onto a reserve on the shore below. As a result of the public outcry, the Council notified a variation to its resource management plan to protect the Kina cliffs and headlands. However, this was too late - the activity has already been approved on a non-notified basis and the damage was done.

Catlins: The Clutha District Council granted a non-notified resource consent to clear-fell 100 ha of native forest in the Catlins.


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