Beauty Is in the Eye of the Beholder

RMLA (AUCKLAND BRANCH) SEMINAR RMA DÉJÀ VU

18 NOVEMBER 2004

In this paper Trevor Daya-Winterbottom immediately, through both amendments considers the RMA Review and what to legislation and other measures, and should be done to improve practice what will require further work” under the RMA. Trevor Daya- (emphasis added). It is anticipated that Winterbottom is a Senior Lecturer in an Amendment Bill will be introduced Law at the University of Waikato. He is into Parliament during 2004, and that the also a practicing Barrister specialising Bill will receive the Royal Assent in in Resource Management Law. 2005.

I. BACKGROUND Two strong themes emerge from the Review. First, a sense that the The current RMA Review was launched Government wants to resolve unfinished by Associate Minister for the business. Second, whilst criticism of Environment, David Benson-Pope, on 12 Local Authority performance is May 2004 hard on the heels of the endemic, particular concerns have been announcement that Project Aqua had expressed in relation to major transport been abandoned. and energy projects.

The Review has focused on “improving A cynical person could, therefore, be both the legislation and how the Act forgiven for experiencing a sense of déjà operates in practice”. It has vu given the recent enactment of the concentrated on five key areas: Resource Management Amendment Act 2003 on 19 May 2003. This paper will,  Achieving the right balance of therefore, critically analyse the need for national and local interests. further review.  Improving the design and process for local policy formulation. II. ACHIEVING THE RIGHT  Improving the consent decision BALANCE OF NATIONAL AND making process. LOCAL INTERESTS  Allocation of natural resources (water, air, or geothermal). Three broad areas of concern have been  Supporting measures for building identified by the Review regarding the capacity and promoting best balance of national and local interests: practice and implementation.  Insufficient expression of the The objective of the Review is “to national interest under the RMA. identify what initiatives can be taken 2

 High transaction costs associated The Court has resolved this issue by with national or large regional applying an overall broad judgment. For activities. example, in Watercare Services Ltd v  Benefits of some activities are Minhinnick [1998] 1 NZLR 294 the national and diffuse compared Court of Appeal when considering with specific and localised costs. whether a designation for a sewer pipeline should be subject to (a) Changing the principles in Part II of enforcement action under ss 314 and 319 the RMA of the RMA because of adverse effects on Maori cultural and spiritual values, Under the RMA Local Authorities are summarised the role of the Courts in given the task of making decisions on relation to Part II of the RMA as resource consent applications and follows: requirements for designations. The ultimate test is whether the proposed “ The Court must weigh all the activity will promote the sustainable relevant competing management of natural and physical considerations and ultimately resources. Inevitably applying s 5 of the make a value judgment on behalf RMA involves balancing and weighing of the community as a whole. … of the matters in issue. In the end a balanced judgment has to be made.” (p305) Current concerns are focused on the fact that Local Authorities are “increasingly In specific cases where “issues of being asked to consider projects that national significance” have been present raise issues of national significance (e.g. the Courts have therefore risen to the transportation and energy infrastructure) task of weighting “competing national in a policy environment that provides benefits and local costs”. For example, little or no guidance on how competing in Auckland Volcanic Cones Society v national benefits and local costs should Transit New Zealand (A203/02) the be weighed”. The question is, therefore, Environment Court was required to what guidance is available to Local balance adverse effects on Mt Roskill Authorities to assist them in discharging from a proposed extension to the western their duties? motorway, against the need to complete the Auckland motorway system. Having Whilst the RMA provides the Minister taken both sides of the argument into for the Environment with powers to account the Court held: prescribe National Environmental Standards and issue National Policy “ Thus if the purpose of the Act Statements, to date these powers have on a national scale is best been under-utilised. As a result the task achieved by the implementation of providing guidance on how of a state highway link then, competing benefits should be weighted subject to serious consideration has been left for determination by the concerning remedial action and Environment Court on appeal. mitigation measures, the Act does not require any natural feature, river, wetland, or natural 3

feature be avoided and thus Enhancing New Zealand’s Resource permanently protected if the Management Performance (2004). The value of the proposed public report makes an important contribution work best achieves the purpose to the debate. of the Act.” (paragraph 49) First, it questions whether the issue is In arriving at this conclusion the Court really one of balancing national and found that the proposed motorway local interests, or balancing extension was a matter of “national “environmental and socio-economic sustainability” that would promote objectives”. Second, it notes that while sustainable management, because the amending s 6 of the RMA could provide proposed activity was found to have a more “explicit” statement about the “significance of national importance and national significance of infrastructure [sic] the economy of the nation as a projects, it would not “resolve the whole”. critical issue” of how to balance conflicting considerations in a given Although this test could be inserted into case. Third, it recommends that any s 6 of the RMA so as to give added statutory amendment should be weight to matters of national importance accompanied by appropriate national in the decision making process, it is policy guidance to avoid perpetuating submitted that legislative amendment the policy vacuum that has haunted alone would not assist decision-makers administration of the RMA since it came in weighing competing considerations or into force. Fourth, it questions whether arriving at a balanced judgment, in practice statutory amendment would particularly in cases where matters of make decision-making easier or provide “national importance” intersect with greater certainty. For example, the landscape issues or Maori cultural and report notes that: spiritual values. Reference to relevant decisions from the Courts would still be The result of such a change may required to guide Local Authorities simply be to enshrine on the face through the decision-making process of the statute objectives that may under the RMA. be irreconcilable in any given context. It is difficult to see how (b) Improving the expression of the this would make local National Interest authorities’ task any easier or give any greater certainty to The review process has therefore applicants. … The veracity of stimulated debate about amending s 6 of such a change has to be the RMA to acknowledge the national questionable. Any benefits that significance of infrastructure projects. might accrue might well be Whilst Dormer recommended statutory outweighed by the inevitable amendment to overcome the problems period of uncertainty that would identified in his 1994 report for the follow and the unsettling case Business Roundtable, more recently law. Local Government New Zealand has questioned the benefit of doing so in 4

An alternative solution that was not been that consultation requirements should be considered could simply involve relaxed in those cases where a Board of amending s 175 of the RMA (and related Inquiry is not appointed. In such cases it provisions) to require that designations is proposed that the public should be should be provided for in the relevant given “adequate time and opportunity to Regional Policy Statement, rather than comment on the proposed subject District Plans. This would provide matter” of the National Policy Statement greater prominence for major similar to the process outlined in s 44 of infrastructure projects in the policy the RMA in relation to National formulation process under the RMA, and Environmental Standards. Third, could avoid the mismatch between provision is to be made for National growth and infrastructure provision Policy Statements to be implemented currently experienced in New Zealand without the need for Policy Statements and other OECD jurisdictions. (See and Plans to be changed in accordance further comment below in relation to with the provisions found in the First improving local policy formulation.) Schedule to the RMA. For example, the package of RMA improvements states: (c) So what has been proposed to balance national and local interests? To implement national policy statements more quickly, it will (i) National Policy Statements be possible to specify that certain provisions can be included in The Government proposes to make council planning documents better use of National Policy Statements without the need for normal local and National Environmental Standards planning processes. to fill the policy vacuum. Given the emphasis placed on transport and energy This proposal is a significant departure projects in the review process it is not from the cumbersome procedure surprising that the list of first priorities currently found in s 55 of the RMA for the development of policy statements which requires Local Authorities to and standards includes energy, change the Policy Statement or Plan telecommunications, transport, and affected by the National Policy reticulated water and waste water Statement in order to give legal effect to projects. the National Policy Statement within the administrative area covered by the Three specific proposals are made for Policy Statement or Plan. changes to the RMA in relation to the preparation of National Policy (ii) Modifying Call-In Statements in order to streamline the policy formulation process. First, the The Government also proposes to requirement for a Board of Inquiry to be modify the Minister’s call-in powers appointed under s 47 of the RMA to hear under s 140 of the RMA which enable submissions made about proposed him or her to determine resource consent National Policy Statements and make applications following the appointment recommendations to the Minister is to be of a Board of Inquiry to hear made optional. Second, it is proposed submissions and report to the Minister 5 with a recommendation as to how the proposals. Hassan, for example, has application should be decided, by stated that: providing a more “flexible [menu of] options” for use in appropriate A question which must be asked, circumstances. The options include: as the details of the call-in proposals are refined, is why this … central government providing option has sat largely unused to information about the national date? One cause of that, perhaps, interest through a submission on has been the potential for call-in a proposal, funding an to become political. As long as independent co-ordinator to the Minister stands as ensure processes are run gatekeeper, Ministers can effectively, directing that an become embroiled in defending application be heard jointly by whether or not to call-in a the councils if more than one project, and this can constrain the must give consent, or appointing effectiveness of the call-in a person to the hearing panel. option. … The menu of options proposed … would also add a In addition, the call-in power under s140 complexity to the process which of the RMA will be extended to include might in practice hinder further private plan changes, designations, and recourse to call-in.1 heritage orders. To ensure that the Board of Inquiry appointed to hear a However, in the speech given by the particular matter will have the Associate Minister in the main centres in appropriate skills to process the September 2004 he clarified the position application the Government proposes to and confirmed that the report of the establish a “standing body of Board of Inquiry will become final and commissioners” from amongst whom that “the Minister will not have a say at members of the Board of Inquiry will be the end of it all”. As a result the process selected. It is also proposed that rights may no longer become political. of appeal from the Minister’s decision should be limited to points of law only. Beyond that, a further concern about the modified call-in process is the repeal of The MfE considers that these changes the right of appeal against the decision to will provide a more open and flexible the Environment Court. First, due to the process to determine whether decisions need to ensure that a reasoned and robust should be locally “or whether some form decision will be produced by the of input from central government is decision-maker(s). Second, because it needed”. It is also anticipated that these removes the supervisory jurisdiction of changes will result in the call-in power the Court from possibly the most being used more frequently than in the important cases decided under the RMA. past. There would, however, be no cause for concern if the model adopted for the Some commentators are less convinced Waitaki Catchment Water Allocation about the practical impact of these 1 Hassan, “Reforming the RMA: are we there yet?” Counsel (27 September 2004) at 6. 6

Board were to be used when setting up a the statutory planning hierarchy were to Board of Inquiry in the future. In that be amended so as to require that policy case membership of the Board comprises statements and plans should “be in an Environment Judge together with an general conformity” with other Environment Commissioner and three documents in the hierarchy. This other members with a local background amendment could be supplemented by a in resource management. requirement, similar to that found in UK Town and Country Planning legislation, III. IMPROVING THE DESIGN that Proposed Plans could not proceed to FOR LOCAL POLICY notification unless the Regional Council FORMULATION confirms that the Proposed Plan is in general conformity with the Regional Areas of concern identified by the Policy Statement. Review process regarding the design and process for local policy formulation It is therefore not surprising to find that include: the role of Regional Policy Statements is to be strengthened as a result of the  Complexity and consistency of proposals for improving the RMA. For plans. example, the Review proposes that  Lack of plans for critical natural District and Regional Plans will be resources. required “to give effect” to the Regional  Costs and time taken to develop Policy Statement. As a result “all plans policy statements and plans. in the region will have to align more closely with the regional policies”. (a) Complexity and consistency of plans Regional Councils are also to be given a Issues such as the complexity and “greater role in strategic planning” consistency of plans are unlikely to be through the explicit ability to prepare resolved by the current Review. This is policies on: because policy formulation under the RMA has to date taken place in a  Promoting sustainable urban vacuum due to the lack of any national form. guidance to inform or influence the  Timely and effective provision of purpose and content of Regional and infrastructure and its integration District Plans. Accordingly, with land use policies (similar to improvements in local policy the provisions found in the ). formulation, such as avoiding undue  Allocation of natural resources. complexity, will (in reality) only be achieved in relation to second generation It is, however, submitted that the plans via national policy guidance. proposal do not go far enough, particularly in relation to designations. Greater consistency between plans As noted earlier s 175 of the RMA could could, however, be achieved if the usefully be amended to require that requirement in the RMA that policy designations should be provided for in statements and plans should “not be the relevant Regional Policy Statement inconsistent” with other instruments in to provide greater prominence for major 7 infrastructure projects in the policy  Lack of clarity and certainty for formulation process. applicants.  Abuse of the process for personal (b) Costs and time taken to develop gain, trade competition, or other policy statements and plans vexatious reasons.

Other amendments to the RMA that may V. IMPROVING CONSENT warrant consideration to improve the DECISION MAKIG AT THE process for local policy formulation COUNCIL LEVEL include: (a) Consistency between Councils  Removing the right for all submitters to be heard at the Lack of consistency between Councils hearing, and substituting this can be an issue where resource consents with a requirement that the for a project are required from more than decision-maker must have regard one Local Authority. This can arise to all submissions received. because District Plans impose different  Adopting a more inquisitorial requirements on applicants in relation to approach to hearings similar to the same activity, or because different the Examination in Public decisions are made by Councils in process used in connection with respect of the same project. UK Development Plans, by selecting for hearing only those More consistent decision-making by matters raised by submitters on Councils could, however, be achieved which the decision-maker needs through greater use of Independent to be more fully informed by Commissioners. For example, making public debate in order to increased use of Independent determine the matters in issue, Commissioners was previously and by limiting the right to be considered in the Report of the Minister heard to those submitters who (in for the Environment’s Reference Group the opinion of the decision- (1998). The report noted that: maker) can make a significant contribution to the debate, either The Group considers that there from their knowledge or from would be major benefits from views they have expressed. improving the independence and quality of resource consent IV. IMPROVING THE CONSENT decision making at the primary DECISION MAKING PROCESS level by shifting the function from Councillors to qualified Concerns about the consent decision Commissioners. … From a making process highlighted by the procedural and practice Review include: viewpoint it should over time, improve the quality of primary  Lack of consistency between decisions while reducing overall Councils. costs for all parties, including the need for appeals.” (pp83-84) 8

commissioning a peer review report (b) Clarity and certainty or applicants under s 92(2) of the RMA.

Lack of clarity and certainty for (c) Abuse of process applicants can arise as a result of requests for further information under s Concerns about abuse of process for 92 of the RMA. It is therefore proposed personal gain, trade competition, or that: other vexatious reasons primarily arise as a result of the provision made in the Councils will be required to give RMA for public notification of resource written reasons for further consent applications. For example, information requests to avoid where an application is notified a allegations that such requests are hearing must be held where a person used only to stall the process. who made a submission in respect of the application has requested to be heard and To avoid stalemate, when applicants has not subsequently withdrawn that consider a further information request to request. Additionally, there is no be unjustified it is proposed that they requirement for standing to be should “be able to refuse to provide demonstrated under the RMA, any information and to request council to person can therefore make a submission proceed on the basis of information about a notified resource consent already provided”. There is, however, a application without disclosing the nature risk in this approach that some Local of their interest (if any) in the matter. Authorities may be swayed by arguments from applicants to grant Whilst it may be tempting to argue for resource consent for activities that would standing to be demonstrated as the basis not achieve good environmental for making a valid submission outcomes in line with the statutory (particularly where projects are delayed purpose of the RMA. To overcome this as a result of vexatious or frivolous problem it may be appropriate to process objections), it is submitted that limiting applications which do not comply with a standing may simply divert resources further information request as non- into arguments before the High Court complying activities. about standing as a result of judicial review actions brought by disappointed Alternatively, certainty could be “submitters”. provided by amending the RMA to provide that the power to require further A package of measures to prevent abuse information to be provided under s 92(1) of process could, however, include should only be exercised in accordance payment of a mandatory fee as a with a rule in the relevant Plan (given prerequisite for making a valid the strong link between information submission. For example, in the requirements for applications and s 92 Republic of Ireland submitters are requests), or in cases where the Plan is required to pay a fee of $40 when silent about the matter the Local making a submission about an Authority’s power to request further application. information should be limited to 9

(d) Costs and delays Speed of decision-making will therefore be important in reducing the opportunity Under the RMA any person can make an for submitters to abuse the hearing application for resource consent to the process. For example, Legomsky relevant Local Authority. Assuming that observed that the disposal rate of cases is the application is complete and that no “crucial” when dealing with “frivolous further information is required, the Local actions [lodged] for purposes of delay”.2 Authority will then be under a statutory Speedy decision-making on the other duty to process the application in hand was found to “discourage frivolous accordance with the time periods actions”. Processing resource consent specified in the RMA either on a notified applications in accordance with the or non-notified basis (i.e. 70 or 20 statutory time periods prescribed in the working days respectively). RMA will therefore be a deterrent against abuse of process, and it will be However, simple analysis of the time critical for Local Authorities to be periods specified in the RMA does not properly resourced to ensure that these assist in defining what constitutes obligations are met. “delay”. For example, delay can arise where the time periods specified in the It will, however, be noted from the RMA are not complied with by a Local statistics quoted above that delay Authority when processing resource currently occurs in relation to the consent applications. Alternatively, processing of approximately 31% of delay could be attributed to the publicly notified resource consent “inconvenience” of having to comply applications, and it is likely that the with statutory requirements. proposed changes for improving consent decision-making will increase Local As a result statistics should be an Authority workloads as a result of the important component of the Review, and requirement for mandatory pre-hearing will help to put concerns about “delays” meetings and the added emphasis place in context. The most recent statistics on the primary hearing. Absent specific available from the Ministry for the measures designed to improve practice Environment show that Local Authority and build capacity the scope for performance in processing resource submitters to abuse the hearing process consents has improved. For example, at Local Authority level for personal there has been increase in the number of gain, trade competition, or other notified consents processed within the vexatious reasons, may be increased. time periods specified in the RMA from 63% in 1999/2000 to 69% in 2001/2002. VI. IMPROVING DECISION The Resource Management Act: Two- MAKING AT THE ENVIRONMENT yearly Survey of Local Authorities COURT 2001/2002 (June 2003) also reveals that overall “82% of all resource consents Calls to remove the right for de novo were processed within statutory time appeals to the Environment Court and to limits in 2001/2002”. 2 Legomsky S, Specialized Justice – Courts, Administrative Tribunals, and a Cross-National Theory of Specialization (1990) at 31. 10 restrict the Court’s jurisdiction should, months of the appeal being therefore, be considered against the lodged. background of Local Authority  Further, the increased provision performance in resource consent made in the RM Amendment Act processing. For example, in the period 2003 for Environment 2001/2002 only 1.8% of Local Authority Commissioners “to sit alone to decisions on resource consent hear and decide cases” also has applications were appealed to the the potential to increase the Environment Court. Court’s ability to dispose of cases expeditiously still further. Analysis of recent developments in the Environment Court, however, clearly Additionally, the announcement of demonstrate that recent concerns about changes to Civil Court Fees on 1 June “the backlog of cases awaiting a 2004 may provide a further disincentive hearing” were due to the number of for vexatious and frivolous objectors to references lodged in relation to proposed pursue appeals or become parties to policy statements and plans, and historic proceedings before the Environment under-funding of the Court by previous Court. For example, the filing fee is to Governments. Beyond that, the be increased to $245 for both appellants opportunity for vexatious and frivolous and section 274 parties, and appellants objectors to delay proceedings before the will be required to pay a hearing fee of Environment Court is likely to be $440 per day for the duration of the reduced as a result of a number of hearing. improvements that have already been introduced: When viewed against the background of these improvements, suggestions that  For example, the number of cases there should be a move away from de waiting for a hearing in the novo hearings by the Environment Court Environment Court has been are not warranted, but specific halved from 3,000 to 1,498 since monitoring should be carried out in May 2002 following the relation to the most recent changes in provision of additional funding Court practice to measure their of $1.2 million to increase the suitability and effectiveness. number of Judges and Commissioners, and to ensure VII. ALLOCATION OF NATURAL that each Judge is assisted by a RESOURCES Case Manager and a legally qualified Hearing Manager. Concerns about the allocation of natural  The use of digital audio resources highlighted by the Review technology has also reduced process include the need for “[b]etter hearing time by 30-40%. mechanisms … for deciding who can use Similarly, the introduction of resources such as water, air and Case Management in April 2004 geothermal, especially fresh water on the should result in the majority of dry east coast and coastal water for cases being heard within 6 aquaculture development”. 11

Two comments can be made about this water permits are likely to take longer to aspect of the Review: process than the national average.

 First, that analysis of the reasons The reason why applications for water given for abandoning Project permits should take longer to process is Aqua indicates that they relate unclear. However, the demise of Project solely to the mechanisms for Aqua in May 2004 where Meridian allocation of water between Energy sought designations and resource productive uses currently consents for the construction of a series available under the RMA, and of canals and other works in the Waitaki the fact that water permits do not River catchment in relation to an energy confer ownership of the resource project, indicates that the reason could or guarantee that it will be relate to the absence of Regional Water available. Plans in certain parts of New Zealand  Second, that concerns about the and the need for legislative amendment allocation of natural resources of the RMA to “enable the merits of are unlikely to be resolved by the competing water uses … to be current Review unless s 65 of the considered and to establish a framework RMA is amended to make the for the allocation of water that will allow preparation of Regional Plans for sustainable development”. mandatory. In particular, these concerns are more likely to be Equally, the reason why certain resolved via the Water applications for water permits take Programme “following a high- longer than average to process could level review of national water simply be symptomatic of the resources and usage”. complexity involved in assessing applications for the use of water. For The most recent New Zealand statistics example, the Development control also show that 190 designations were statistics: England 2001/02, published processed by Territorial Authorities in by the UK Office of the Deputy Prime 2001/2002, but no statistics are given on Minister, notes that: the percentage of designations processed within statutory time limits prescribed in Planning applications vary in the RMA. However, because most complexity and authorities may major projects will also require resource have different mixes of simple consent from the Regional Council, the and more complicated statistics for processing consents by applications. The speed with Regional Council’s may provide a useful which applications are decided guide to whether applications for major varies according to the type of projects are processed within statutory development … Applications for time limits. The statistics show that 86% larger scale … developments of coastal permits, 63% of water permits, generally took longest to decide. and 75% of discharge permits were processed within statutory time limits in VIII. SUPPORTING MEASURES 2001/2002. What emerges from this FOR BUILDING CAPACITY AND analysis is that projects which require 12

PROMOTING BEST PRACTICE Similarly, without further enquiry into AND IMPLEMENTATION the cause of delays in resource consent processing it will be difficult, on an The last key area to be considered under empirical basis, to consider whether the the Review process deals with “other time periods specified in the RMA [non-regulatory] matters” that can be should be reduced to provide further used to promote and implement best incentives to Local Authorities to practice. process resource consent applications more quickly. It is, however, important It is not surprising, therefore, that the to inject a degree of caution into the most recent statistics also show that debate about whether shorter time performance is uneven both between periods should be specified in the RMA Local Authorities in respect of the same for processing resource consent type of consent, and within Local applications, to ensure that Authorities in respect of the different environmental quality is not sacrificed as types of resource consent. For example, a result of any statutory amendment. in the Waikato region Hamilton City There will inevitably be a threshold Council processed 70% of notified below which the desire for greater applications for land use consent within efficiency, in terms of the time periods time, whereas Waikato District Council specified for processing resource processed 100% of notified applications consents, would be likely to have an for land use consent within time. adverse effect on environmental Similarly, when looking at regional outcomes. councils, Environment Canterbury processed 55% of notified water permit IX. CONLUSION applications within time, but processed only 25% of notified discharge permit The current RMA Review process applications within time. demonstrates a critical need to recognise the importance of making provision for As a result there is a need for further infrastructure projects under the RMA as research in relation to the reasons why a matter of national significance. some Local Authorities perform better Examining the options for reform of the than others in processing resource RMA also demonstrates the critical need consent applications within the statutory for national policy guidance. time periods, and why other Local Authorities are markedly better at Beyond that, limited procedural processing certain types of resource amendments should be made to improve consents than others. Without further Council hearing procedures, and to enquiry it will be difficult to determine clarify consultation and information the reasons for such differences in requirements for applicants. The performance, or to assess what needs to temptation to move away from de novo be done to improve matters in terms of appeals to the Environment Court statutory reform or preparation of should be resisted in interest of national policy guidance or increased providing commercial certainty. funding.