Publications
FYI
Naturally Resourceful
18 Dec 2008
The RMA – Where is it Going?
The Government has announced the appointment of the RMA Technical Advisory Group and the Group's terms of reference. The group has been formed as a part of the National-Act confidence and supply agreement and has been established to assist the Government's plans to reform the Resource Management Act 1991 (RMA). The National-led Government proposes significant changes to the RMA by 26 February 2009, with submissions by local government on those reforms being called for by the end of this week.
The Technical Advisory Group comprises of 8 professionals: barrister Alan Dormer (chair of the group); environmental consultant Guy Salmon; mayor of Rodney District Council Penny Webster; planning consultant Michael Foster; Environment and Planning Manager at Tasman District Council Dennis Bush-King; businessman Rt Hon Wyatt Creech; Russell McVeagh environmental law partner Paul Majurey; and barrister in environmental and public law Mike Holm.
The terms of reference for the group are to have regard to the following outcomes of the RMA review:
- raising New Zealand's rate of productivity and economic growth;
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increasing the flexibility of the economy in order to facilitate adjustment and promote confidence and investment in response to economic crisis; and
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providing for sound environmental policies and practices.
Importantly, the Advisory Group is asked to provide independent advice to Ministers on the implementation of the first phase of reform for the RMA to facilitate the introduction of the reform bill by 26 February 2009.
Broadly the RMA reform programme proposes to:
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streamline and simplify processes;
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provide priority consenting of major projects;
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reduce costs and delays;
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speed up plan making processes; and
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restrict trade competition, vexatious and frivolous objections.
The Technical Advisory Group will also consider other amendments put forward by members of the group, local government and of support parties, and advise on the suitability of those suggestions to be included within the reform bill. The Group will also advise on other non-legislative reforms in relation to the effective functioning of the RMA and identify other RMA reforms that require longer term consideration and that should be considered as part of a second phase of reform.
By way of background, National's policy for the first phase of these reform goals proposes an increased use of national policy instruments (National Policy Statements and National Environmental Standards) and institutional changes. The most significant changes will be made through the creation of an Environmental Protection Authority (EPA).
The first phase reform goals are expected to comprise the following:
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priority consenting for major infrastructure projects is to be implemented, with consents for projects to be processed by the newly established EPA, which will be required to make decisions within 9 months;
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it is proposed that the Environmental Risk Management Authority (ERMA) will be expanded into the EPA;
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the EPA is proposed to have responsibility for the national regulatory functions of the RMA, including priority consenting, National Environmental Standards and National Policy Statements, as well as ERMA's current functions;
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potentially the EPA could have the power to prosecute the Crown for breaches of resource consents;
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a complaints procedure is to be implemented with a power to discount or "waive" consent processing fees if councils breach statutory time frames for processing consents;
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removal of the Minister of Conservation's right of veto on coastal permits;
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reinstatement of the Environment Court's power to award security for costs where merits of an appeal are "weak" and there is a risk of costs not being paid;
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new provisions relating to powers to prevent vexatious and frivolous objections to consents;
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changes to district and regional plans and the plan change process, including encouraging regional and district councils to develop a single plan (details not yet provided);
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an alteration to the definition of environment in section 2 of the RMA to only include "natural and physical resources" (ie. removal of references to spiritual or socio-economic matters);
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prohibiting objections based on trade competition when considering an application for a resource consent (currently a consent authority must not have regard to trade competition when considering an application for consent under section 104(3)(a));
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reduction in the number of consent categories from five to three (details not yet provided); and
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replace references to "Treaty principles" with specific requirements for iwi consultation (details not yet provided).
One of the new Government's concerns is about the time taken to process resource consent applications. The idea of a late consent being a free consent has been floated as one option of encouraging councils to process consents in a timely manner. In other words, if a consent authority does not meet its statutory timeframes, it would not be able to charge for processing the resource consent application. That prospect may well cause some alarm for consent authorities, given the challenges consent authorities often face in finding and retaining good quality consent-processing staff. In many situations, there is considerable material to sift through and it would be very difficult to meet those timeframes. It is difficult to say whether such a provision would in fact improve decision making, or whether it would result in faster decisions of a lower quality. Unless changes were also made to the ability to request further information, this could increasingly be used by councils as a means of buying more time.
Another option mooted by the Government is to cut down the two-step process for applications that currently exists. At the moment a consent authority hears all the evidence in support of and opposing an application, and then if the Council's decision is appealed to the Environment Court, the Environment Court goes through a similar process and hears all the evidence again. In practice this has become the norm for most large projects and also quite a few smaller projects. So it is not surprising that there have been questions raised about the efficiency of this process.
Two possible outcomes the Government may consider are either direct referral of contentious projects to the Environment Court, or some modified form of Board of Inquiry. In other words, this could result in cutting out the Council process, or alternatively, the Government may consider removing the right of appeal to the Environment Court from decisions made by independent accredited commissioners.
A further potential option is to allow a consent applicant to insist on independent commissioners hearing the application. We are aware of situations where Councillors hearing a consent application have been reluctant to separate their role as representative of the community from their role as a decision maker on a consent application.
Another significant area that may involve some change relates to infrastructure. The Government has signalled that it will provide for priority consenting of major infrastructure projects. Currently there is a call in process whereby nationally significant projects can be referred directly to a Board of Inquiry or to the Environment Court. So far three projects have been sent to Boards of Inquiry and one has been referred directly to the Environment Court. It seems likely that the Government will change this system so that a project does not have to be of national significance in order to be called in. For example, it might only need to be of regional significance.
One aspect of the infrastructure reforms is the proposal to create an EPA, which is a model that Australia currently uses. Surprisingly, the Government has signalled that the EPA would be based out of ERMA rather than the Ministry for the Environment. The justification for this seems to be to separate the policy making function from the regulatory function. However, we note that the Australian model for EPAs has the policy and regulation functions contained within the same body.
It is still unclear what the EPA would look like. One of its functions could be to organise a new form of Board of Inquiry. Longer term, there seems to be a suggestion that the EPA might take on some functions of regional councils. The Government has called for greater central government direction in the application of the RMA. It has also signalled that it considers there is currently too much duplication of effort in terms of the plans produced by each local authority.
Other reforms that seem likely to occur are the reintroduction of security for costs, to discourage vexatious and frivolous objections to consent proposals. Another change that seems likely is making the rules around standing to submit and appeal on proceedings stricter.
Given that increased central government direction has been signalled, we expect to see more national environmental standards produced. These have more teeth than national policy statements and seem to provide a clearer basis for giving local authorities direction at a national level. These proposals seem to be a continuation of the path the previous government was already on, with an increased emphasis on National Policy Statements and National Environmental Standards being apparent over the past two years.
Sector specific reforms (long term)
Finally, in the long term the National-led government has proposed to review infrastructure regulation, specifically the overall role of the RMA and the Public Works Act 1981. In particular, the review of that legislation will relate to the availability of and basis for assessment of compensation for landowners. There are also reforms proposed for policy in relation to water and urban design. The Government proposes to put on hold the draft National Policy Statement on Freshwater Management and create a new framework for addressing allocation issues. Regarding urban design, the interaction between urban design and the RMA is proposed to be reviewed.
The possibility of water trading is definitely an issue to watch, and the Government has signalled that it would prefer to allow the market to regulate matters such as water allocation rather than leaving this solely to regional councils.
Authors
Padraig McNamara
Partner - Public Sector
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James Winchester
Partner - Public Sector
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Matt Conway
Senior Associate - Public Sector
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In This Article:
The National-led Government proposes significant changes to the RMA by 26 February 2009, with submissions by local government on those reforms being called for by the end of this week.
