Obiter

The Final Straw for the RMA? Some shortcomings of the Resource Legislation Reform Bill 2015

By: Simon Berry, Partner and Helen Andrews, Senior Associate, Berry Simons

1. INTRODUCTION

1.1 The Resource Legislation Reform Bill 2015 (“RLRB” or “the Bill”) represents the second phase of the National-led Government’s reform of the Resource Management Act 1991 (“RMA” of “The Act”), as signalled by the February 2013 discussion document “Improving our Resource Management System” (“Discussion Document”). It follows the first phase of RMA reforms which resulted in the Resource Management (Simplifying and Streamlining) Amendment Act 2009 (“2009 Amendment Act”) and the Resource Management Amendment Act 2013 (“2013 Amendment Act”).
1.2 The Discussion Document  indicates that the Government considered further reform was necessary for the reason that it:
“… continues to hear concerns that resource management processes are cumbersome, costly and time-consuming, and that the system is uncertain, difficult to predict and highly litigious. The system seems to be difficult for many to understand and use, and is discouraging investment and innovation. The outcomes delivered under the RMA are failing to meet New Zealanders’ expectations.”
1.3 This is typical of language that has surrounded the RMA, which has been a political football since even before its enactment. It also reflects the misconception that it is the RMA rather than its implementation that is the problem.
1.4 Some aspects of the Bill are worthwhile and can be supported. However, many aspects of the Bill are ill-conceived and poorly drafted. The 2009 and 2013 Amendment Acts were a source of concern for their poor drafting, erosion of access to justice and unintended consequences. Even judged against those amendments, the RLRB represents a significant retrograde step, to such an extent that if enacted in its present form could prove to be the straw that breaks the RMA’s back in terms of efficiency and ease of application.
1.5 The four key concerns with the Bill relate to:
(a) Amendments that are based on flawed assumptions or seek to address problems which have not been proven to exist and/or which could be dealt with under the existing framework.
(b) Poor drafting coupled with the introduction of entirely novel legal concepts that will introduce further confusion, costs and delay (for which the RMA will inevitably and simplistically be blamed).
(c) Further reductions in opportunities for public participation and access to justice.
(d) The continued aggregation of power to the Minister for the Environment at the expense of planning by co-operative mandate which has always been one of the cornerstones of New Zealand planning legislation.

 

1. INTRODUCTION

1.1

The Resource Legislation Reform Bill 2015 (“RLRB” or “the Bill”) represents the second phase of the National-led Government’s reform of the Resource Management Act 1991 (“RMA” of “The Act”), as signalled by the February 2013 discussion document “Improving our Resource Management System” (“Discussion Document”). It follows the first phase of RMA reforms which resulted in the Resource Management (Simplifying and Streamlining) Amendment Act 2009 (“2009 Amendment Act”) and the Resource Management Amendment Act 2013 (“2013 Amendment Act”).

1.2

The Discussion Document  indicates that the Government considered further reform was necessary for the reason that it:“… continues to hear concerns that resource management processes are cumbersome, costly and time-consuming, and that the system is uncertain, difficult to predict and highly litigious. The system seems to be difficult for many to understand and use, and is discouraging investment and innovation. The outcomes delivered under the RMA are failing to meet New Zealanders’ expectations.”

1.3

This is typical of language that has surrounded the RMA, which has been a political football since even before its enactment. It also reflects the misconception that it is the RMA rather than its implementation that is the problem.

1.4

Some aspects of the Bill are worthwhile and can be supported. However, many aspects of the Bill are ill-conceived and poorly drafted. The 2009 and 2013 Amendment Acts were a source of concern for their poor drafting, erosion of access to justice and unintended consequences. Even judged against those amendments, the RLRB represents a significant retrograde step, to such an extent that if enacted in its present form could prove to be the straw that breaks the RMA’s back in terms of efficiency and ease of application.

1.5

The four key concerns with the Bill relate to:

(a) Amendments that are based on flawed assumptions or seek to address problems which have not been proven to exist and/or which could be dealt with under the existing framework.

(b) Poor drafting coupled with the introduction of entirely novel legal concepts that will introduce further confusion, costs and delay (for which the RMA will inevitably and simplistically be blamed).

(c) Further reductions in opportunities for public participation and access to justice.

(d) The continued aggregation of power to the Minister for the Environment at the expense of planning by co-operative mandate which has always been one of the cornerstones of New Zealand planning legislation.

To read the full paper, click here