RMLA comments on Select Committee’s report back on Resource Legislation Amendment Bill
On Monday March 06, the Local Government and Environment Committee announced its recommended changes (by majority) to the Resource Legislation Amendment Bill with several key amendments to the original proposed changes to the Resource Management Act 1991; Reserves Act 1977; Public Works Act 1981; Conservation Act 1987; and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.
The RMLA had, in its submission, noted its concern that while the increased emphasis on national direction could achieve better alignment and integration across the resource management system, many of proposed changes were unnecessary, and potentially introduced unintended complexity and new opportunities for procedural challenge that would not assist in achieving robust and durable resource management decisions. The RMLA is pleased to see that some changes have been made in line with the RMLA submission, but notes several matters of concern still remain.
For consenting processes, the RMLA notes the following in the Select Committee’s recommendations:
- The RMLA does not support the removal of rights of appeal on boundary activities, subdivision applications and residential activities (in residential zones) other than in respect of non-complying activities. This material change will affect applicants as well as submitters. The removal of appeal rights will not address housing supply or affordability if decisions go against applicants, or if consents are granted subject to unworkable conditions that cannot be remedied on appeal. Removal of appeal rights further erodes access to justice for iwi, land owners, developers, neighbours and affected parties.
- While the concepts of “deemed permitted activities” and “boundary activities” are generally supported by the RMLA, the improvements to these sections of the Bill sought by the RMLA to improve certainty for applicants have, regrettably, not been incorporated.
- In terms of the ability for affected persons to be notified and take part in resource consent applications, the RMLA welcomes the Select Committee’s deletion of the amendments that further narrowed eligibility criteria to take part in consent processes.
- The RMLA supports the proposed change to section 104 which confirms that consent authorities must consider volunteered offsetting conditions as part of the overall evaluation of a resource consent.
For plan making, the RMLA notes the following in the Select Committee’s recommendations:
- In respect of the new proposed collaborative planning process, a key point of the RMLA submission was that any greater emphasis on collaborative processes should not be at the expense of merit-based Environment Court appeals. The RMLA submitted that concerns regarding council-level planning-process inefficiencies that the original Bill had purported to address were overstated and that therefore the narrowing of the rights of appeal to a “rehearing” only, should be abandoned. However, the Select Committee has retained the much narrowed rights of appeal from plan decisions arising from a collaborative planning process.
- Contrary to the RMLA submission, the new provisions allowing a plan change or variation to be notified only on a limited basis are retained, further diminishing public participation in planning processes.
- The Bill proposes a new streamlined planning process that was opposed in its entirety by the RMLA due to its potential to undermine the premise of devolved decision making, and the provision of unjustified and significant decision making power to central government in local plan making. While the Select Committee has recommended some minor improvements to the process, such as in respect of the requirement for public notification, the proposed process is still a significant departure from the local decision making on plans that forms part of the foundation of the RMA.
In terms of ministerial discretion and national direction generally, the RMLA had raised concerns on several fronts about the wide discretion the original Bill reserved to the Minister, that threatened the durability and credibility of processes and decisions.
- The RMLA is pleased to see that the unqualified discretion of the Minister to approve early use of the collaborative planning process has been amended.
- The proposed regulation making powers in the original bill have been significantly reduced, which is supported by the RMLA.
While the RMLA recognises and supports the Resource Legislation Amendment Bill’s objective to create a resource management system that achieves the sustainable management of natural and physical resources in an efficient and sustainable way, the RMLA remains concerned that the Bill may not, in a number of respects, achieve these outcomes.
Many of the processes, for example, remove or further diminish public participation and rights of appeal. It has not been demonstrated that the loss of these important checks and balances is outweighed by (or is proportional to) the benefits of the new processes, in terms of robust and durable resource management decisions.
In terms of durability, the RMLA had significant concerns in respect of the extent to which the Minister (and Government) of any particular day can now change planning provisions and processes. In this respect, RMLA welcomes the Select Committee’s recommendation to remove some of the Minister’s proposed regulation-making powers.
RMLA also notes its concern regarding the potentially significant transaction cost associated with any amendment to the resource legislation.
Commenting on the Select Committee’s report back on the Resource Legislation Amendment Bill RMLA President Maree Baker-Galloway describes the Select Committee’s changes to the Bill as “a mixed bag”. “There are some definite areas of improvement and refinement providing greater certainty, and the removal of the wide regulation making powers from the original Bill is very sensible”, she said.
However, she stresses that key concerns remain. “There will generally no longer be the right to appeal a decision by a council on a subdivision, residential and boundary activity applications – whether from an applicant or a submitter. Local decision making on plans could be significantly undermined by the new and largely unfettered ‘streamlined plan process’”. These types of changes, she warns, threaten to undermine good quality and durable consent and plan making decisions.
The Select Committee’s recommendations and the main principals of the Bill will now be subject to debate by the New Zealand House of Representatives in a second reading before the Bill is put to the final vote.