1. The broad discretion of the RMA enables councils to include planning rules in their plans that unreasonably restrict land uses and/or restrict land uses that are regulated by other means, creating duplication of costs which are disproportionate to thebenefits.
2. The Ministry for the Environment has undertaken a limited scoping exercise to assess the extent of the problem. This included reviewing submissions to the Rules Reduction Taskforce, relevant reports, seeking anecdotal experiences from planning practitioners, and discussion with the Treasury. A range of examples of the types of provisions which could fulfil the criteria of unreasonableness or duplication were found, including planning rulesthat:
· regulate the width between palings on afence
· impose requirements to insulate buildings above the level required by the BuildingAct
· require living spaces to be outward-facing to the street to improvestreetscape
· regulate gas storage requirements over those required byHASNO
· have design requirements that require cobblestonepaving.
3. The high costs imposed on resource users to ensure compliance with these types of rules are not commensurate to the de minimus adverse environmental effects (if any) that would result from non-compliance. Some of the unreasonable rules identified impose costs on users that are in the thousands or even tens of thousands of dollars. Given that there are more than a hundred RMA plans that are operative or proposed, there may be many more cases of unreasonable planning rules in existing plans. Councils may also set further unreasonable rules in thefuture.
New regulation makingpowers
4. The proposal is to introduce a new regulation making powerto:
a. prevent and remove council planning provisions that duplicate the functions, or have the effect of overriding, otherlegislation
b. prevent and remove council planning provisions that impose land use restrictions that are not reasonably necessary to achieve the purpose of theRMA
c. permit certain land useactivities.
5. Proposal a) is intended to address rules in RMA plans that are essentially already governed by other legislation, while proposals b) and c) are intended to address overly restrictive or onerous RMA land use planning rules where the costs of those rules outweigh thebenefits.
6. These new regulation making powers would enable the Minister to prevent councils from making, or require councils to remove duplicative and unreasonably restrictive RMA plan provisions.
7. The risk of this proposal is that the creation of a regulation making power to override RMA plan provisions would in essence be a ‘Henry VIII’ clause. Any regulations made under this proposal would essentially override the existing power local authorities have to include RMA plan provisions on particulartopics.
8. This risk can be reduced by drafting the regulation making powers in the most limited way possible and providing adequate safeguards. The proposal includes the ability for the Minister to determine that the regulations only apply to a specific district or region. The exercise of the new regulation making power would be subject to a statutory consultation requirement and a section 32evaluation.
9. In the case of b) and c) above the regulation making power is limited to land use rules. A sunset clause coinciding with the implementation of the National Planning Template (P 1.3) will apply. Regulations made under b) are further limited to only residential land use rules and the regulations themselves will expire when the National Planning Template is implemented.
10. The exercise of the regulation making power would be subject to the usual processes that apply to all secondary legislation, including regulatory impact analysis, Cabinet decision- making, regulations disallowance and judicialreview.
Changes to council functions to prevent duplication with HSNOAct
11. In addition to introducing the new regulation making powers, the proposal will address a specific instance of duplication between the RMA and the Hazardous Substances and New Organisms Act 1996(HSNO).
12. The proposal will amend sections 30 and 31 (and 65(1)(3)(c), Fourth Schedule clause 6(c) and 7(f)) to remove controlling hazardous substances as an explicit function of local authorities.
13. This will remove the main provision which imposes an explicit obligation on local authorities to regulate hazardous substances in RMA plans, which will reduce compliance costs for users of hazardous substances and reduce the regulatory burden onratepayers.
14. There could be some cost to councils in reviewing and amending plans to remove or substantially reduce RMA controls on hazardous substances, however we anticipate this could be done over time as part of plan reviewprocesses.
15. Guidance will provide examples of where controls might still be warranted under the RMAand where controls are not necessary orappropriate.
For regulation makingpowers
Non-statutory guidance and governmentengagement
16. Guidance could be developed and provided to local authorities to establish how an activity or effect should or should not be regulated and provide best practice rules and consent conditions that could be implemented. Furthermore, central government could actively monitor operative plans and proposed plan changes and either engage with councils on their proposed plans and/or submit on their proposed plans to prevent unreasonable rules from being made and ensure that permissive rules for certain activities aremade.
17. Non-statutory options would provide councils with clear expectations and support from central government on what should and shouldn’t be regulated or how to best regulate an activity or an effect. This would allow councils to implement government expectations while retaining community decision-making power and ensuring local needs aremet.
18. However, without legislative force, non-statutory options provide little certainty that duplicative processes and disproportionate regulations will be removed. These outcomes are dependent on voluntary actions by councils. Furthermore, central government engagement is highly resource intensive and would require significant additional resources to monitor plans in detail, engage intensively with councils on rules and make submissions on proposed plan changes which could result in appeals to the EnvironmentCourt.
Amend National Environmental Standardprovisions
19. Under the RMA, an NES may permit an activity or restrict the making of a rule to matters specified in the NES. However, there is a legal risk that an NES that provides that certain environmental effects should not be regulated would be deemed ultra vires. To address this, the NES empowering provisions in the RMA could be amended to explicitly enable themto:
· state that certain activities and effects should not beregulated
· state that councils should not impose certain rules or consentconditions
· state that certain land use activities are to bepermitted
· override existingconditions.
20. This option would give wide scope for restricting the regulation of activities and effects. It would allow the Minister to address a broad range of restrictive and duplicative rules and ensure certain land use activities werepermitted.
21. There is a legal risk with this option as NESs are designed to set standardised rules for how an activity/effect should be regulated, and there may be legal difficulties using these instruments to prohibit certain rules or consent conditions. Although the NES provisions could be amended to make this a vires use of the power, it is not a comfortable fit within the broader purpose ofNESs.
22. The NES provisions in the RMA would require an objective assessment before decisions can be made to incorporate matters into the NES. However, although the objective assessment goes some way in providing constraints on the regulatory override power, it would not adequately meet the LACguidelines.
Broad regulation making power (duplication anddisproportionate)
23. A broad regulation making power could provide the Minister with a wide scope for restricting the regulation of activities and effects and permitting certain land uses. The activities and effects subject to the regulation making powers would be identified based on the Minister’s opinion without the safeguards of an objective evaluation, which would increase the rate at which restrictive rules could be struck down via judicialreview.
24. This option is likely to be highly controversial given its unconstrained power that essentially overrides functions delegated to councils by the primary legislation with no limit on the scope or extent of the regulations. It is also likely to attract criticism during the Bill process and Regulations Review Committee scrutiny. The Parliamentary Counsel Office agrees that this option is notdesirable.
25. On balance the targeted regulation making powers are the preferred option. These are most likely to achieve the outcomes sought by removing existing planning rules and preventing future rules that unreasonably restrict development and/or impose unreasonable costs, and/or are duplication of other controls provided through other legislation. The regulation making powers will also enable the Minister to permit certain land uses in plans. This option provides certainty in achieving the outcome sought, while providing appropriate safeguards and constraints in alignment with the LACguidelines.
26. The changes to council functions to prevent duplication between HSNO and the RMA are the appropriate way to address the significant regulatoryduplication.
27. We consider that if the regulation making powers are used, this proposal will go some way in ensuring that planning rules and documents are implemented consistently. It will contribute to achieving the objective of better alignment and integration across thesystem.
