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Land Transport Management Bill - misses the bus

AA Advocate

Land Transport Management Bill - misses the bus.

The Land Transport Management Bill is a tortured piece of legislation.

Conceived as a thoroughbred to improve New Zealand's transport system, its redesign by a committee with diverging ideas of what constitutes improvement has resulted in something of "a camel". Half of it seeks to make tolling and private investment in roading easier while the other half will make transport planning and construction slower and more convoluted. On the way it manages some strange bits of "doublethink" such as defining the sea as "land" and evading the responsibility to define what one of its core objectives actually means.

Let's step back and have another look at what the problem is. Most of New Zealand's urban transport systems owe their heritage to plans made in the 1960s. These were only partially built in the 1970s on the back of an agricultural price boom. Then nothing happened for 25 years.

INFLUX. In the late 1990s New Zealand enjoyed another agricultural price boom. At the same time there was an influx of returning New Zealanders and new migrants which put even more pressure on under-developed infrastructure.

The logical thing to do was to invest in infrastructure but this didn't happen.

Since the introduction of the Resource Management Act in 1991 the progress of major infrastructure planning had slowed to a snail's pace.Where a century ago it might have taken a large team of workmen with picks and shovels eight years to build a road it now takes a large team of lawyers and consultants as much time to wade through the paperwork ( at considerably greater expense).

It was obvious that the RMA and its associated processes needed work and over the years this work has been progressing to make the Act useful.

This did not, however, make Governments any more willing to invest more in infrastructure. It was therefore proposed that even if Government didn't want to invest more in infrastructure that the private sector, at least, be liberated to do so. Hence the Land Transport Management Bill.

The Bill did not get far, before it became the subject of "horse-trading"

between the Labour and Green parties. The Green Party sees transport as a very important part of its mission to reduce energy use nation-wide. It is also active at electorate level in some high profile anti-road campaigns.

As a result the Green Party has been acknowledged by Government Ministers for its input into the Bill.

The Green input into the Bill has been to increase the degree of consultation required when developing land transport programmes and widen the scope of land transport to account for alternatives to roads.

These goals will be welcomed by the Green's constituency which, at best, reflects the views of 10% of the population. The other 90% of the population will however see already diluted roading funding needed for safety and congestion relief being diverted to inefficient projects that waste money.

In 50 years cars will no longer run on fossil fuels but will still be popular and will still need roads. Future generations will not thank a government which failed to think ahead and invest in obviously needed infrastructure, in their name.

Before voting on this Bill we urge MPs to consider its implications.

Special Edition

Why the Land Transport Management Bill Scores 2/10
/ Creates provision for new community supported toll roads
/ Creates provision for private-public partnerships in transport infrastructure

- Objective 5, "environmental sustainability" not legally defined.
- Not properly integrated with the Resource Management Act.
- Onerous consultation guaranteed to double planning delays for new road or rail links.
- Regional Councils required to plan for ways to reduce traffic regardless of growth.
- No clarity on precedence between Regional and National Land Transport Programmes.
- No clarity on "exceptional circumstances" allowing tolling on existing highways.
- Cultural interest groups take place of road users on Regional Land Transport Committees.
- Allows foreign shipping firms to be subsidised by motorists.

The "Road Prevention Act"

Some Regional Transport Planners already see the Land Transport Management Bill as the "Road Prevention Act". In a report titled "Streamlining RMA Approvals for Land Transport Projects" for the Ministry of the Environment published in February 2003 Adrienne Young Cooper noted that "Major roading projects in New Zealand typically take around eight years from inception to start of construction..". Planners now say under this legislation it could take twice as long. Electorate MPs voting for this legislation should be prepared to explain to their neighbours why they wanted transport planning in their region to be stalled for up to 16 years. Indeed given that the Comprehensive Transport Plans developed for Auckland and Wellington by De Leuw Cather and Company in 1955 and 1963 respectively have still not been progressed significantly since the mid-1970s the electorate can only question what its representatives are now attempting to do.

To date the Government has focussed on the tolling and public private partnership provisions of the Act as a step forward towards getting new roads built quicker. AA polling has found that while the public will reluctantly tolerate tolls they are far from enthusiastic about PPPs.

This suggests the additional PPP consultation requirements will effectively rule this option out for most commercial investors, a matter business interests are concerned about. ONEROUS. But what has been ignored are the increasingly onerous consultation provisions of the Bill for forming Land Transport programmes. This will mean that building a road will require more consultation than any other form of construction in the country, including hydro schemes as it will have to overcome objections at both the Land Transport programme formation stage as well as overcome the Resource Management Act hurdles.

It is significant that in his introduction of the Hill Young Cooper report Barry Carbon, the MfE chief executive wrote: "When I started in my position as Chief Executive of the Ministry for the Environment some seven months ago I soon discovered a lot of concern about delays in the progress of major roading projects. The Resource Management Act was seen by many as the key contributor. There was a view that the consideration of the merits of the Act was overshadowed by concerns about delays in decision-making for important projects. This is a view I now share. "

The recommendations of the report were:

* Clearly establish transport policy within a sustainable development framework aimed at improving quality of life through better social, economic and environmental outcomes

* Strengthen the role of the regional land transport strategy (RLTS) through changes to the Land Transport Act as the appropriate vehicle for in-principle decisions about the need for major transport projects, including roading projects

* Provide appropriate statutory linkages from the RLTS to the designation provisions of the RMA to clarify that in-principle decisions on transport solutions are not to be litigated through RMA procedures

* Provide a new optional and additional type of designation to determine the alignment of the route where long-term route protection is the objective, leaving matters of detailed environmental mitigation to a notified outline plan stage.

Of these the Land Transport Management Bill might have purported to achieve the first recommendation, if its "environmental sustainability"

objective had been compatible with the RMA's "sustainable development" objective, but as discussed on page 3, the use of significantly different terminology raises questions as to how the two laws would in fact inter-operate. The Ministry for the Environment is making progress on developing ways for improving the Resource Management Act's ability to process projects of national significance. It would be ironic if this work were rendered inconsequential by the passage of new legislation which once again slowed development. MPs must now ask themselves whether they wish to be seen as part of the solution or part of the problem.

What is "environmental sustainability" exactly ?

The Land Transport Management Bill has five key objectives for all transport programmes in New Zealand. The meaning of four of these objectives is self-evident but the most strongly worded objective "ensure environmental sustainability" is not formally defined, either in the Bill or in the New Zealand Transport Strategy. Senior practising lawyers approached by the AA were unable to explain it. If Members of Parliament voting to enact this Bill have a definitive understanding of its meaning why not share it? How will the judiciary be able to interpret the intention of Parliament unless Parliament knows what it means? Sustainability is not a new concept in New Zealand law. It is incorporated into the management of New Zealand's fisheries, as "sustainable development"

into the Local Government Act 2002 and, most famously under section five of the Resource Management Act which defines "sustainable management".

Sustainable Management as defined in the RMA is deliberately anthropocentric and follows the definition of Sustainable Development adopted in 1987 by the United Nation's Brundtland Report which defined it as: "Development that meets the needs of the present without compromising the ability of future generations to meet their own needs."

ECOCENTRIC. The term "Environmental Sustainability" is not anthropocentric but ecocentric. It is about the sustainability of the environment first and foremost with human objectives taking second place. This is reinforced by the use of the relative words "assist, improve and promote" applied to the other four objectives which contrast with the absolute term "ensure"

applied to "environmental sustainability". Some authoritative definitions of "environmental sustainability" in use overseas depict it as systematically reducing the ecological impact of any human activity. This could mean that transport planners would be obliged to "ensure"

that their transport strategies did not add to the local or global ecological burden.

The only guidance provided by the New Zealand Land Transport Strategy is that this undefined objective will be achieved by "creative responses"

such as "improving the efficiency of roads" "promoting alternatives to roads"

and "reducing traffic growth" via "education, regulation, technology and investment". Does this mean that this legislation's operational definition of "ensure environmental sustainability" is "improving the efficiency of roads", "promoting alternatives to roads" and "reducing traffic growth"? Is that what the Parliament of New Zealand wants all land transport programmes to "ensure"? Members of Parliament could be being asked to endorse a Bill which proposes that no transport programme should increase the current burden of transport on the local or global environment. This would effectively mean that transport programmes could only be used to reduce, not just traffic growth, but transport per se, thereby creating a freeze on regional growth.

GROWTH. Don't be fooled. There is no way to reduce traffic growth without hurting both local growing economies and the overall national economy.

All economic growth involves transport growth. Despite appearances the internet only stimulates transport, as was proved in the U.S during the late1990s when parcel delivery volumes threatened to double in half a decade driven by a combination of just-in-time inventory management and over-the-internet ordering. Where a conventional shopper might generate a single return trip to buy an assortment of items one internet shopping session could launch a fleet of delivery vehicles.

By insisting that future transport planning "ensures" an undefined environmental objective Parliament could well be opening the way to hamstring growing regional economies before they have a chance to develop.

Do we need the risk?

Why subsidise foreign ships?

New Zealand is about to become the only country in the world which will legally define the sea as the land and pay subsidies to foreign flagged and crewed ships using taxes from motorists. This is because of a change in the definition of "Land Transport" in the Land Transport Management Bill to include all coastal shipping operations as defined by the Maritime Transport Act (1994).

The Shipping Industry Review 2000 has already detailed how foreign flagged and crewed vessels undercut New Zealand's puny merchant marine with marginal pricing while taking advantage of lower operating costs and incentives provided by their own governments overseas, but it now seems we are preparing to offer them even more inducement courtesy of the New Zealand motorist.

The notion seems to be that by offering an inducement, freight forwarders can be encouraged to have their contracted ships make additional port calls around the country that might have otherwise been uneconomic. While New Zealanders have to wait until the benefits of road safety engineering are almost five times more than the cost of construction to see their petrol excise spent on making roads safe it seems likely that foreign shipping firms will merely have to demonstrate that the cost of shipping by sea is the same as the cost of road transport to be able to get an extra cash incentive to make a port stop.

The only reason "Coastal Shipping" has been included in the Land Transport Management Bill is to apply a bandaid subsidy solution to an industry that has been cut in half by antagonistic tax policies. If New Zealand shipping policies were working properly there would be no need to subsidise well heeled foreign shipping companies.

Democracy vs Social Engineering

The Land Transport Management Bill is being promoted to the public as improving the chances of much needed roading projects being built. But read through the fine print, particularly the schedules at the back and it soon becomes clear that this Bill is the means by which the transport policy of a Party which obtained only 7 % of the vote in the last election will be slipped into the statute books.

While many regard transport as "boring" the Green Party states on their website: "Transport lies at the heart of so many other issues; climate change, social cohesion, urban planning, rural economies, food production systems to mention a few." The Greens realise that by changing transport policy they have a good chance of changing the way we live. Normally in New Zealand major decisions about the way we live are decided by the majority. While this Bill nods in the direction of democracy by requiring roading authorities to consult with as many as 14 different types of groups over their programmes the Bill is, in practical terms, as undemocratic as a piece of legislation could be. Why? Because the will of the majority is, at no stage, given explicit precedence over the will of the minority. Indeed by forcing consultation with small groups the Bill effectively gives equal weight to those who represent a dozen people as those who represent many thousands. In some cases the views of the majority have been left right out of the process altogether. REPRESENTATION. Most of these processes are not to be found in the Bill itself but in Schedule Three of the Bill which amends other acts. For example by replacing Section 178(2) of the Land Transport Act the Bill effectively replaces the voice of millions of road users on regional land transport committees with those representing "cultural interests". This could mean that representatives of the local arts community could have as much say on the future of a regions roads as those whose livelihoods depend on them, or whose lives are lost on them.

The Bill also cynically exploits New Zealanders poor understanding of local government processes and low voter turn-out at local authority elections by placing the responsibility for achieving unpopular measures on the shoulders of regional rather than central Government. In particular the requirement of the new Section 175(2)n of the Land Transport Act to "include a demand management strategy that has targets and timetables appropriate for the region" effectively revitalises the Green Party's "Road Traffic Reduction Bill".

DEMAND. How could regional governments manage demand? Making urban parking increasingly expensive is one simple way. Charging for on-road parking in residential areas is another. Reducing the number of lanes available to motorists on busy streets to induce congestion. As from March 2004 they could reduce speed limits to the point that walking and cycling become viable alternatives. There are no end of ways in which regional government can increase the cost of operating a car.

Who will suffer? Individuals who really need flexible transport but who earn little. Typically working mothers with small children and the elderly.

Both face mental health risks if deprived of mobility but neither are on the Bill's lists of those who should be consulted. The ultimate aim of the Green Party's transport policy is to reduce the amount of energy we collectively use. Unfortunately it fails to recognise the simple fact that people aspire to more and better and safer transport.

By attempting to constrain transport energy use its policies will fall hardest on those least able to avoid them creating public transport dependency. Lack of access to a car is an indicator of poverty in this country. It is one thing to freely choose one mode of transport over another. It is another to have the choice taken away by obscure committees working to laws the majority never voted for.

If you are interested in responding to the Advocate, adding a friend or colleague to our circulation list or registering to receive an email version of the Advocate please email AA Motoring Editor, Peter King (pking@nzaa.co.nz)

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