Resource Legislation Amendment Bill will diminish the RMA’s founding principles

Leading environmental law firm Berry Simons is deeply concerned about the Government’s planned changes to the Resource Management Act (RMA). They warn that the Act is nearing a tipping point at which it is unworkable.

In their latest paper, The final straw for the RMA? Some shortcomings of the Resource Legislation Reform Bill 2015 (RLAB), Simon Berry and Helen Andrews argue that continued amendments to the RMA, including some of those proposed in the RLAB, are bringing the once internationally ground breaking legislation “to its knees”.

Simon Berry, Partner, says while some aspects of the Bill are positive and supported, a number of the amendments are ill conceived and poorly drafted.

“The RLAB is extremely concerning for its erosion of access to justice and potential to create unintended consequences. If enacted in its present form, it could prove to be the final straw for the RMA, in terms of efficiency and application.”

Helen Andrews, Senior Associate, says one of the firm’s key concerns is that several of the amendments are based on flawed assumptions about the current problems with RMA processes.

“The Bill’s flawed assumptions have produced provisions that are designed to solve problems which do not exist, or are not significant enough to warrant legislative intervention of this magnitude.

“These will require councils to gear up for changes which will have little benefit and which could also produce unintended negative consequences.”

Mr Berry points out a further issue with the Bill is that it significantly reduces opportunities for public participation - one of the fundamental pillars of the RMA.

“For example, the Bill precludes limited notification of certain activities even to neighbours. It also makes it mandatory for local authorities to strike out submissions in certain circumstances.

“Access to justice is a cornerstone of our democratic society. Participating in planning processes represents a fundamental means of protecting property rights.

“Any restriction on this ability should only occur in a transparent manner and with sound justification – not through death by a thousand cuts via continual amendments to an Act founded on public participation.”

Ms Andrews highlights a third key concern as being the Bill’s introduction of novel concepts which have not been defined or tested before, as well as producing unnecessary complexities.

This will inevitably create further confusion, costs and delays via litigation to clarify the scope of the new provisions. Classic examples of this are the unusual concept of “deemed permitted activities” and an entirely new set of notification provisions.

“In its 25 year history, the RMA has been significantly amended many times. Every round of amendments potentially creates more costs and delays, as it adds complexities and new provisions and concepts which must then be understood and applied by applicants, legal advisors, and council staff.

“The results is increased uncertainty and cost, and highly difficult to predict litigious outcomes where people have to go to lawyers and often through the court process, just to obtain guidance on what a new concept means or how to interpret poorly drafted provisions.

“As a result, the RMA is inevitably and simplistically blamed for being difficult to predict and highly litigious.”

Berry Simons strongly believes there is a lack of justification to introduce these novel and difficult concepts. According to the National Monitoring System, 96% of applications processed to a decision for 2014/15 were non-notified.

Mr Berry says these statistics confirm that existing notification processes are not in fact routinely causing undue delays, such as to warrant the changes proposed to address this issue in the RLAB.

“The RMA does not require such radical revisions, which will only reduce the ability to implement it as intended. As it stands, the RLAB will create uncertainty and even more delays and costs; something it says it is aiming to abolish.”

Mr Berry and Ms Andrews note that the Select Committee is a fundamentally important next ‘port of call’ for addressing the issues they have highlighted.

“The hope is that party political considerations can be put aside in favour of quality outcomes,” says Mr Berry.

ENDS

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