Background to RMA Amendments Bill

1. The Resource Management Act 1991 (RMA) is New Zealand’s primary environmental statute, covering environmental protection, natural resource management and our urban planning regime. Since its inception, the RMA has been subject to several reviews and reforms. Recent changes include streamlining and simplifying the RMA in 2009, and a series of reforms focusing on institutional arrangements in 2013. Regulatory Impact Statements (RISs) for these previous reforms are available on the Ministry for the Environment’s (MfE)website.1

2. The overarching purpose of the RMA is to promote the sustainable management of New Zealand’s natural and physicalresources.

3. Sustainable management means managing the use, development, and protection of natural and physical resources in a way that enables people and communities to provide for their social, economic, and cultural well-being and for their health and safetywhile:

· sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of futuregenerations;

· safeguarding the life-supporting capacity of air, water, soil, and ecosystems;and

· avoiding, remedying, or mitigating any adverse effects of activities on theenvironment.

4. To achieve its sustainable management purpose, the RMA assigns different roles and responsibilities to central and local government, requiring authorities and the Minister for the Environment. Central government has responsibility for administering the RMA, providing national direction and responding to national priorities relating to the management of the environment and environmental issues. Most of the everyday decision making under the RMA is devolved to territorial authorities (city and district councils) and regionalcouncils.

5. The Government is now seeking to make further changes to improve the effectiveness of the RMA.

6. Additional work that has contributed to the wider resource management reformsincludes:

· independent advice from a series of Technical AdvisoryGroups2

· public consultation on specific options for reforming urban and infrastructure elements of the resource management system through the discussion document, Building Competitive Cities, in October2010

· the Productivity Commission investigation of issues relating to housing affordability and regulatory performance in localgovernment

· establishing an efficiency taskforce and expert advisory group on local government, and consultation undertaken as part of the ten point reform programme for localgovernment

· the Land and Water Forum’s (LAWF) three reports on freshwatermanagement.3

7. A discussion document, Improving our resource management system, was released in February 2013 outlining problems and proposals for resource management reform. The Government’s proposals for freshwater reform were included in a paper titled Freshwater reforms 2013 and beyond and were released in March 2013. Over 14,000 submissions were received on the resource management discussion document, and over 350 on the freshwater reform proposals. Further discussion on submissions is included in the consultation section of theRIS.

8. Government sought policy decisions on the reforms through two Cabinet papers in May and June 2013 [CAB Min (13) 15/8 and CAB Min (13) 18/8 refer]. However, the reforms were not progressed until after the 2014 General Election. Post-election, the Government has been considering the previous package of reforms with a view to introducing a Bill in2015.

1 http://www.mfe.govt.nz/more/cabinet-papers-and-related-material-search/regulatory-impact-statements/ris-phase-two-resource

2 UrbanTechnicalAdvisoryGroup.2010.ReportoftheMinisterfortheEnvironment’sUrbanTechnicalAdvisoryGroup.Wellington:Ministry

for the Environment. Infrastructure Technical Advisory Group. 2010. Report of the Minister for the Environment’s Infrastructure Technical Advisory Group. Wellington: Ministry for the Environment. Principles Technical Advisory Group. 2012. Report of the Minister for the Environment’sResourceManagementAct1991PrinciplesTechnicalAdvisoryGroup.Wellington:MinistryfortheEnvironment.

3 http://www.landandwater.org.nz/

Status quo and overarching problemdefinition

9. There are three main overarching problems that are contributing to the overall inefficiencies and inequalities within thesystem:

· there is a lack of alignment and integration of policies and processes across thesystem

· resource management processes and practices are not proportional oradaptable

· the system makes robust and durable decision-makingdifficult.

10. These problems frequently manifest themselves in resource management processes and practices that are inconsistent, complex and uncertain, ultimately leading to an increase in time and cost for systemusers.

11. The overarching problems are discussed in more detail below. A summary of problems and issues is also provided in Table1.

There is a lack of alignment and integration of policies and processes across thesystem.

12. To achieve the sustainable management purpose of the RMA, the Act sets out hierarchy of planning instruments, from the purpose and principles in Part 2 of the Act, to national direction tools developed by central government, down through the various regional and district level planning documents prepared bycouncils.

13. National level objectives should “flow down” through the various planning levels from regional policy statements to district plans and finally to consenting decisions. Although there has been a significant amount of commentary on the perceived lack of national direction for strategic issues in the resource management system, there is also inconsistency in the way existing direction has been implemented in thishierarchy.

14. In contrast to its predecessor, the Town and Country Planning Act 1977, the RMA was designed to allow plan development and decision making to be undertaken at the level of the affected community. This was so that local biophysical conditions and community priorities could be reflected in plans. For this reason, variation in regional and district plan rules across the country is expected andnecessary.

15. However, not all variation is desirable. Inconsistencies and differences between council plans create problems for cross-boundary applicants and submitters. Misalignments with other pieces of legislation in the natural resources sector create duplication or conflict between policies and processes which creates unnecessary problems for activities that require permissions under more than oneAct.

16. For the purposes of these reforms, we consider that variation is undesirable whenit:

· results in inconsistent incorporation of matters where national consistency is considered desirable

· imposes costs on users that are disproportionate to its benefits (ifany)

· contributes to inconsistency and confusion which could be easily fixed with standardisation oralignment

· means that benefits of other process improvements cannot be fully achieved (eg, electronic notification).

Resource management processes and practices are not proportional oradaptable

17. The RMA as enacted combined around 70 different pieces of legislation into one statute. This considerable consolidation and simplification in the RM system has benefited systemusers.

18. While there is an obvious tension between the need for simplification and streamlining and the need for processes to be adaptable to different situations, many of the current problems with the RMA indicate that this balance has not yet been struckcorrectly.

19. In hindsight, it appears that policy makers underestimated the complexity of plan making under the RMA. In particular, how long it would take councils to produce plans, including the length of time it would take to complete public consultation. This affects the ability of plans to be flexible and responsive to newmatters.

20. Additionally, many of the commonly heard complaints about the RMA from resource users relate to planning and consenting processes that are considered disproportionate to the activity in question and therefore very costly in terms of time andmoney.

21. While many applications and plans are large in scale and require the standard process, many examples have been identified where more tailored or streamlined processes would be more appropriate.

The system makes robust and durable decision-makingdifficult

22. In working towards the goal of sustainable management, there is an inherent need to weigh up competing interests. On a daily basis, decision-makers confront the fact that not all interests align perfectly and that trade-offs in values and priorities must bemade.

23. One of the major principles on which the RMA is based – that communities are best placed to make decisions on the issues that affect them – does not envisage that there will be consensus on all important issues. It does, however, place vital importance on the plan making process as the appropriate venue for assessing and reconciling communityobjectives.

24. Twenty-four years since the enactment of the RMA, the Act creates limited incentives for decision-makers to proactively provide up front opportunities to further community objectives. In the name of maintaining all public avenues for participation in RMA processes, the focus has come to be more on the number of different available opportunities to comment or complain (dragging out the process beyond expected timeframes), and less concerned with the quality of input and whether it contributes to betterdecision-making.

25. In reality, many parties only engage with the RM system at the point of applying for a resource consent. The result of this is that the consenting side of the RMA, which is supposed to implement and reinforce the trade-offs decided on at the earlier plan making stage, is used to re-litigate these issues. Long-winded appeals, objections and litigation reduce certainty for resource users, undermine the planning process and contribute to risk aversedecision-making.

26. The shortage of skilled and experienced decision-makers results in ongoing capability and capacity issues which also contribute to problems with the robustness and durability of decision- making at all levels under theRMA.