The delivery of smoother and crisper planning processes is the big objective behind the next round of reforms to the much-reformed Resource Management Act (RMA).
Announcing the Government's policy decisions at the weekend, Environment Minister Amy Adams said they represented the "most significant reform of the Act since its inception".
This is no small claim, given that the RMA has been amended 19 times in its 22-year history.
We summarise and comment briefly on the proposed amendments.
The efficiency of planning decisions and plan development is fundamental to the smooth operation of the RMA. Changes proposed in this area include:
- a requirement for councils to work together to develop a single plan, covering all the rules in their area (including regional and district rules)
- a new national planning template that sets out the structure and key content councils must incorporate in the development of their resource management plans
- the introduction of two new consenting options which councils may elect to use when developing plans (one for fresh water, the other for all other plan content)
- requirements to better engage with local iwi in making planning decisions
- greater scope for National Policy Statements (NPS) to include directions for delivery; provision for NPS and National Environmental Standards (NES) to be targeted to a geographical area (rather than being national in their application); a new capacity to develop combined NPS and NES, and enhanced powers for Ministerial intervention in planning processes.
National planning template
This will be important to informing how councils should go about developing the single plan for each district. The consistency it will create across territorial authorities will also assist with ensuring a more cohesive approach to planning throughout New Zealand.
The first template plan will be released two years after the amendment act is passed. Not clear at this stage is how often the template will be updated, and whether and how councils will have to incorporate any updates into their plans (once the single plans have been developed).
Single resource management plan per district (or other agreed area)
Having one plan (rather than a district plan, regional policy statement and various regional plans) will make it easier for property owners to understand the objectives, policies and rules that apply to their land. But how effectively this works will depend upon the degree of co-operation and collaboration between councils, and the effectiveness of the processes discussed below.
Councils will have only one year from the time the template plan is released to make the single plans 'available'. Even assuming that means publicly notified as a proposed document for submission, rather than completed, this is still a very tight timeframe.
To assist councils in ensuring public participation in plan making, two new processes are proposed which councils may use:
- Fresh Water Collaborative Planning Process –only for freshwater management, and announced earlier this year in the context of the water reforms, this allows regional councils to appoint a collaborative group representing a broad range of interests to deliver a consensus report which will form the basis of the fresh water plan (or plan provisions). An independent review panel then considers the plan. The panel makes a recommendation to the council as the final decision-maker.
- Joint Council Planning Process –for resource management plans except for content relating to freshwater. This is essentially the model used for the Auckland Unitary Plan, although it also includes an initial step whereby district and regional councils work together to produce a single set of integrated planning rules. Again, an independent review panel conducts a hearing into the plan and makes recommendations to the council to make a final decision.
Under both processes, merits appeals to the Environment Court will be restricted to those matters on which councils reject the independent review panel's recommendations. These are likely by their nature to be relatively narrow so that the bigger issues of planning philosophy - objectives, key policies and so on - become a settled context for how appeals are determined rather than the subject of appeal in themselves.
This will serve to reinforce council accountabilities but it will impose a high demand for quality assurance in hearings processes. Full merit appeals would continue to be available for plans made on the now "normal" Schedule 1 track.
We consider that these proposals may suffer from being developed through separate policy streams. There would certainly seem scope for better integration, and we expect this will occur as the legislation is developed. Why, for instance, do the two options need to have separate review panels and distinct processes through to completion? Surely an integrated hearings process would be more logical and efficient?
Council planning agreement
This will set out the framework for how councils will work together to produce the single resource management plans per district (or other agreed area). Because, even with a common template to work from, the development of a single, integrated plan will be procedurally complex, we think that these planning agreements will be extremely important.
Councils will be required to invite iwi/hapu to enter into an arrangement that details how they and council will work together through the planning process. This reflects a growing acknowledgement of the importance of co-governance of New Zealand's resources, as between Maori and councils as the delegates of the Crown as Treaty partner.
As signalled in Chapman Tripp's commentary on the February discussion document, Part 2 of the RMA will be amended to:
- revise and consolidate sections 6 and 7 into a single list of matters of national importance (new section 6), and
- set out methods which direct how resource management stakeholders (in particular decision makers) should act (new section 7).
The congregation into a single list of both "protection" values and use and development principles breaks with the current RMA segregated section 6 and section 7 structure and is one of the more controversial of the proposed reforms.
But the significance of the change should not be overstated.
Point One, the RMA – as the name suggests – has always been a resource management act, not an environmental protection act and has always espoused a philosophy that use, development and protection are inter-related.
Point Two, these reforms proceed against a backdrop where the RMA has failed to deliver upon "sustainable management" priorities, including in relation to environmental protection. "Sustainable management" is not served by endless conflicts about the words in Part 2. It will be advanced by quality leadership and administration that is accountable to the communities it serves, and builds confidence in those communities.
To enhance the leadership model for central and local government, as these reforms intend, requires some realignment of Part 2. Sustainable management principles and processes are inter-related.
Resource consents process
A number of changes are proposed to make the resource consenting process more efficient and effective and to reduce the scope for delay, expense and relitigation of decisions. They include:
- a 10 day process for the most simple and straightforward consenting types (e.g. alterations to residential properties)
- ability to grant exemptions from the need for a resource consent for technical or marginal breaches of a plan rule
- fixed fees for many consent application types
- measures to reduce the cost of the Environmental Protection Authority's (EPA) processing of applications for nationally significant proposals
- changes to the "affected party" criteria
- limits on what can be covered in submissions to the matters that have prompted the public notification of an application
- a new right for applicants to have recourse to an independent commissioner to seek to overturn conditions imposed in a decision, rather than having to appeal
- non-notification for all controlled activities, and for other activity categories, where the application is consistent with the objectives and policies of the plan
- a requirement that conditions on consents be directly connected to the plan provisions breached, or the adverse effects of the proposed activity.
The direction of these reforms will be generally welcomed by developers, small and large. However, there is a need for further clarity and refinement on key elements.
EPA cost savings
We support the effort to reduce the costs of the EPA national consenting process (particularly those applications heard by boards of inquiry). However, we think that there may be opportunities for further cost savings prior to the public notification of these proposals. In particular, we consider that there is scope for narrowing the amount and level of detailed information required to be produced for a board of inquiry hearing.
Rights of participation
Some clarification is needed on who will be an 'affected party' in certain circumstances. Eligibility in relation to subdivisions, for example, will depend on whether the particular subdivision is "anticipated" by an underlying plan rule or zoning but it is not clear what is meant by 'anticipated' – would a discretionary subdivision activity be classified as 'anticipated'?
There are judicial review risks when limiting people's ability to become involved in consenting processes. If the Government and councils seek to limit public participation, clarity will be required on when there is a right to make submissions, and when there is not.
We note that the 2009 reforms (which changed the presumption that a consent authority must notify an application for resource consent) were effective in significantly reducing judicial reviews of council notification decisions. It will be important to get the balance right to ensure judicial review proceedings do not again increase in popularity.
Independent objection process
Again, there is a lack of detail as to how this process will work. It might be reasonably straightforward where the applicant is the only interested party.
But what if a submitter makes gains in the council's decision following a public hearing process only to have these removed by the applicant's subsequent recourse to an independent commissioner before whom the submitter has no right to be heard?
Other proposed changes
Other significant changes include:
- a mechanism for the Minister to direct changes to resource management plans to give effect to NES, NPS or other national direction
- a requirement that councils provide at least 10 years' zoned capacity to meet population growth
- a clearer performance monitoring framework to make councils more accountable for how they are meeting environmental, social, cultural and economic needs, and
- the transfer from councils to the EPA of responsibility for controlling hazardous substances and new organisms (GMOs) through the RMA.
Our thanks to Katherine Viskovic for writing this Brief Counsel.
The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.