New Zealand Engineering 1998 November

New Zealand Engineering

It has been difficult to avoid hearing the moans and groans about the Resource Management Act. Everyone has their own opinion on what is wrong with it, or whether anything is wrong. So, where to from here?

A significant part of any professional's training consists of learning the specialised vocabulary of their profession.
The Minister for the Environment, Simon Upton, has been in the forefront of listening to and providing his own opinion on the problems. In this past year, he has instituted two major approaches to finding out what's wrong and deciding on "where to from here" which have now been published.

This article summarises some of the main points addressed by those two reviews. The only thing which emerges clearly from the reviews is that the scope of necessary reform is a matter of some contention.

The Minister's answer

In describing the impetus for reform of the Resource Management Act the Minister for the Environment said that "high hopes were held that cumbersome and often fragmented planning procedures would give way to a streamlined regulatory system focused on environment effects....Seven years on, the perception is that land use restrictions seem to be as extensive as ever."

Consequently the Minister commissioned Owen McShane to produce "a piece designed to provoke debate". Mr McShane is a well-known critic of the current resource management regime and was chosen deliberately to provide a personal, (guaranteed to be) controversial, view of a contentious subject, and not to find some neutral course.

The general theme of Mr McShane's report (published in April) was that local authorities charged with administering the Act are imposing undue restrictions on the freedom of property owners. Furthermore, he considered that these restrictions are not due to the advancement of any genuine purpose of sustainable management, as the Act intends, but rather result from the framework of the Act being misused by bureaucrats.

The McShane Report generated a number of debates and seminars to discuss Mr McShane's views and recommendations. Submissions on the report were also requested.

In September, the report of the Minister for the Environment's Reference Group into the Resource Management Act was made available to the public. This report, following hot on the heels of the debate caused by Owen McShane's "think piece", is described as "another stage in an open review process"; a step by step process designed to ensure thorough public debate prior to the proposal of legislative amendments.

The 10 members of the Reference Group were deliberately chosen for their diverse approach to, and experience with, the Resource Management Act. The group was asked by the Minister to adopt a practical perspective and recommend changes to the Act which would address tension points within the Act which have become apparent over the last seven years.

Social and economic engineering

The group considered that the inclusion of "amenity values" into the broad definition of "environment" in the Act has been used as a basis for local government to include social and economic objectives in their plans. Whilst this was considered by the group to be problematic, they remained of the view that the definition of "environment" ought not be limited to natural and physical resources.

The group recommended removing reference to "aesthetic coherence" from the wider definition of "environment". This supports a holistic approach to the issue whilst going some way towards removing subjectivity which can potentially stifle innovation and design.

The McShane Report on the other hand supported the view that the definition of "environment" ought to be limited to physical aspects of the environment. Mr McShane argued that property owners have long established common law rights (eg. to be protected from noxious activities) and that these should not be diluted by "highly subjective judgments relating to the amenities of the neighbourhood".

Resource consents - "the sharp end of environmental management"

Under the Resource Management Act the entire process of obtaining a resource consent is managed by local government agencies. This process involves two separate roles or functions undertaken by the local authorities. The distinction is between application processor on the one hand and actual decision maker on the other.

Mr McShane heavily criticises the resource consent procedure saying that its potential for cost and delay threatens investment and innovation by providing an "environmental tariff barrier". He recommends that the present council monopoly on resource consent administration should be broken by enabling applicants to select their own preferred council or private consultant to administer their consent application. According to Mr McShane, competitive consent processing would eliminate "much of the present nonsense" and prevent a clear abuse of monopoly power by councils.

The group considered introducing competition into the process at either or both of the application processing and decision-making stages. Advocates of such a reform see advantages to the consumer in claimed greater choice, higher quality services, and lower charges with the break-up of the monopoly that councils currently have under the Act. Obviously, they also believe that this is an area in which consultants could reap the benefits of a freed-up, contestable, market.

A number of options were considered by the group. A majority of the members felt that competition ought not to be introduced at the decision-making level but did see benefits for introducing it into the application processing limb of the system. The recommendation favoured was for privately operated "application processors" to attend to all tasks in relation to the application (eg. requests for further information and desirability of public notification) except for the setting down of the hearing and the making of the decision on the merits.

Although the group did not favour introducing free market contestability into the actual decision making on resource consent applications, they did favour shifting this responsibility from local authorities to independent commissioners. The group considered this an important way to improve the independence and quality of initial resource consent decisions, the ultimate aim being to reduce the appeal workload and increase the efficiency of the Environment Court. It also removes all consent work from local authorities.

Independent commissioners would be appointed by the Minister for the Environment on the basis of qualifications, experience and expertise. Their use will provide for separation of the policy and rule-making function of councils from the quasi-judicial function of determining resource consent applications. This is also an area in which consultants of all persuasions could become involved.

Appeals from decisions of independent commissioners would be to the Environment Court on points of law only. This is seen as an important factor in increasing the efficiency of the court. Any increases in costs through the use of independent commissioners would be met by the applicant.

The only caveat on the use of independent commissioners the group noted, was that there may be special cases where unusually complex legal and technical issues are involved where direct referral to the Environment Court at first instance would be valuable. A new process was proposed to allow this to occur.

Whether these proposals will placate the detractors of local authorities remains to be seen. The loss of positive control by the local authorities of the application of their plans is likely to be strongly resisted by some. Such loss of control may be seen as an incentive on all councils to draft clearer, more concise and practical plans, which can be interpreted by all and sundry, and not just that council's planners (a dream to be wished for with some councils, and a reality already with others!).
Subdivision - in or out, or nowhere?

The impetus for reform in this area is due to concern that some local authorities are using subdivision control to achieve non-Resource Management Act purposes.

Mr McShane is firmly of the view that subdivision should be removed from the Resource Management Act altogether. He concludes that it is not necessary to have subdivision controls for the purpose of promoting sustainable management, because the actual act of subdivision has no environmental effect. Councils should not be entitled to use controls over subdivision as a tool for maintaining control over the use of land. Mr McShane goes as far to say that when councils suddenly change the rules to make large properties unavailable for subdivision, they are stealing people's life savings.

The Reference Group also considered whether subdivision ought to be removed from the Resource Management Act. It thought that it should stay, noting that it provides an appropriate opportunity to address several resource management issues that would otherwise require the imposition of land use controls. The group recommended changing the Act to provide that subdivisions are permitted as of right unless specifically controlled by a rule in a plan. This is a reversal of the presumption currently contained in section 11 of the Act.

This commentator would tend to agree with Mr McShane on this issue - if councils want to limit intensive residential use of land, then numbers of houses per area is the appropriate measure - not a restriction on the division or redrawing of legal boundary lines.

What the future holds

There is no doubt that the job now lying before the Minister for the Environment is a difficult one. He has commissioned two reports into the Act which differ from one another in these and a number of other marked respects. The Minister has said that the Resource Management Act "touches the lives of all New Zealanders and protects our valued environment for future generations." The Minister intends to put an amendment package before Cabinet in December and introduce an Amendment Bill into Parliament early in the new year.

As changes to the Act are proposed and made, hopefully the principles of the Act will be kept firmly in mind. Sustainable, integrated, management of resources remains as vital today as it did seven years ago when the Act became law.