3 February 2009
EDS comments on RMA reform announcement
The Chairman of the Environmental Defence Society, Gary Taylor, has responded to the announcement today of the National-led government’s Resource Management Act (Simplify and Streamline) Amendment Bill 2009.
EDS is an environmental public interest law group well placed to critique the RMA reforms. It convened a national conference on the RMA in 2007 and is regularly before the Courts on resource management issues.
“If the bill merely simplified and streamlined current processes, and reduced unnecessary compliance costs, it would be acceptable,” said Mr Taylor.
“All resource management practitioners would accept that the RMA needs a tune-up. The real question is whether the bill goes beyond that and lowers environmental standards or reduces rights of legitimate participation.”
“Mostly, the reform bill appears to be in the tune-up category. But there several proposals of major concern and a number of other seemingly small changes that taken together will weaken environmental planning and have a chilling effect on public participation.
“The key change in the tune-up category relates to major infrastructure developments. EDS has long argued that major projects should more readily proceed to the Environment Court or a Board of Inquiry and this bill does that. Having a council hearing for matters that are inevitably going to appeal is a waste of everybody’s time. However, we would suggest that any party ought to be able to request referral, not just applicants.
“The related proposal to create an Environmental Protection Authority was well-signalled before the election. An EPA could improve the quality of our environmental administration, but we will have to wait for phase 2 of the reforms to see how the shell proposed in this bill will be fleshed out.
“Many of the changes proposed to plan making procedures are generally acceptable. More national guidance is proposed and that is good. A number of further changes should reduce the time it takes to make plans.
“Many of the proposals with respect to resource consents are also acceptable. It is good to see pressure put on councils to process resource consents within clear timeframes. “But where the bill moves into very questionable territory, is where it proposes to weaken plans and limit rights of public participation.
“Our primary concern is the proposal to limit appeals on district plan reviews to points of law unless leave of the Environment Court is obtained.
“In our view this mistakes the role of the Environment Court which is an expert tribunal that hears the issues afresh and applies its considerable environmental expertise to reviewing the merits of a case. It is a vitally important counter to the possible excesses of councils that can make perverse decisions from time to time. Reviewing the merits of plan changes protects the public from decisions based on parish pump politics, political dogma, or just bad judgement. The Environment Court currently provides the only ‘check and balance’ on council decision making under the RMA and it would be a very retrograde step both for effective local administration and for the environment to remove this.
“Another concern is the proposal to further limit notification of resource consents. Rights for the public to object have been slowly whittled away over the years and now further limits are proposed. This runs counter to the participatory nature of the RMA and the ability of members of the public to be heard on applications which are likely to have a negative effect on the environment.
“Other proposals are also likely to prove problematic. Making rules only take effect once a plan change or variation becomes operative will lead to the gold-rush effect, where people rush to beat proposed rule changes before they take effect. This will make it almost impossible for planners to keep ahead of environmental issues as they develop.
“The proposal to remove non-complying activity status from plans needs clarification. One effect of this might be to weaken plans, lower the environmental bar and produce bad environmental outcomes. We agree there are too many categories of resource consents but the thinking behind this proposal is not clear.
“It is also unclear whether the proposal to prevent submitters seeking to have whole plans withdrawn applies to plan changes or variations. If it does, submitters would not have been able to oppose Waitakere City Council’s proposed plan change making Whenuapai a commercial airport. This aspect of the bill needs further explanation.
“We are also concerned to see security for costs proposed as well as a very substantial increase in court filing fees. This will further discourage public participation.
“Overall there are a number of changes that taken together will weaken proactive planning, further limit public involvement in RMA processes and shift the balance further towards development interests. This is hardly surprising given the development bias in the membership of the TAG.
“We note that there is a second phase of RMA reform to follow. This is likely to deal with more substantive issues. It is hoped that the government will set up a more balanced and consultative process than the one it used this time,” Mr Taylor concluded.