Resource Management (Simplifying and Streamlining) Amendment Bill

As reported from the Local Government and Environment Committee

Green Party minority view

The Green Party supports the aim of simplifying and streamlining the RMA so long as that can be achieved without compromising its fundamental purpose of protecting the environment, and the rights of people and communities to have input to planning decisions. We note that this bill adds many pages to the original bill and do not believe it will achieve its purpose of simplifying planning law. In some cases the amendments make it more complex, and as introduced it created considerable uncertainty with new wording that had not been tested by case law. We are glad that the select committee's work has reduced those instances.

In particular we believe the bill has been improved by the deletion of many of the proposed changes to the plan making process. These included changes to restrict plan appeals that were labelled "a fundamental right to justice" by Ministry of Justice officials, and the removal of the non-complying activity category that fills an important niche for activities that are undesirable but inappropriate for complete prohibition. Public submissions on these matters were overwhelming and persuasive, and we are pleased that they have been removed. However, we have some specific concerns that remain, despite, in most cases, vast public objection in submissions.

Security for costs

While experienced RMA parties know that the courts have rarely awarded security for costs against bona fide community groups, we are concerned that applicants may, as they have in the past, use the threat of this provision to deter submitters from taking part in the process at all. That is why Parliament removed that provision from the bill in 2003.

The court already has power to strike out appeals that are frivolous, vexatious, or without merit and we believe that appeals which do not fall at these hurdles should be allowed to proceed without further hindrance to the democratic process.

This bill goes much further than the pre-2003 provision, which allowed security for costs to be awarded only for appeals. With the new provisions for direct referral to the Environment Court, appellants do not even get a hearing at the council level before they face this barrier at the first hearing.

Clause 131-joining appeals, section 274

The Green Party opposes clause 131 and believes focus on excluding trade competitors will also exclude genuine community groups. The ability to join appeals brought by other participants has been a valuable safeguard of democracy for parties who are voluntary and unresourced, not focused full-time on RMA matters, who may not hear of an appeal deadline in time to participate.

We are not convinced that the Attorney-General will necessarily be proactive enough to defend the public interest if community groups are excluded.

Discounts for late consent processing (clause 25)

A mandatory discount is to be set for late consent processing that is the fault of the council. Regulations are to be made to determine how fault is to be assessed, and to set dispute resolution procedures. We are concerned that a contestable process for determining fault and dispute resolution processes will take up valuable time for the council and the applicant that would be better spent getting on with the job. Parliament is unable to assess the workability of the regulations as we will not see them. In general, we prefer such matters to be dealt with in primary legislation.

Tree protection rules

The Green Party shares the desire to reduce the cost and time delays of 4,000 consent applications for tree work, but believes the blanket protection provision could be streamlined to allow trimming as a permitted activity, except for trees specifically scheduled. Applications for tree removal, other than for specifically scheduled trees, could be made on site by delegated authority.

We are concerned that it is those urban areas undergoing the most rapid densification where trees are most valued by the community and are most at risk from new development.

This legislation replaces the cost and complexity of many resource consent applications with the cost and complexity of individually identifying and scheduling all important trees. There is no doubt, in our view, that valued urban trees will be lost under this amendment.

Public notification restricted

The amendments to sections 93 and 94 are less complex than in the bill as introduced, and their effect may be little different from the status quo, but once again the changed wording creates uncertainty. It is hard to discern the real purpose of the changes-whether it is, as the heading in the commentary states, to restrict public notification, or, as the Minister told us in the committee, to give councils discretion to use their judgement so that they have to spend less time writing a long report to justify their decision. The Minister explicitly told us his purpose is not to see fewer applications notified.

We note that there have been some very poor council judgements on notification in the past, and that these can be challenged only by judicial review as successive Governments have not brought into force section 115(3) of the Resource Management Amendment Act 2005 that would allow appeals on notification decisions to the Environment Court. To further restrict grounds for judicial review, which happens rarely anyway, is to impose even less discipline on councils' notification decisions and encourages councils to err further towards not notifying.

Minister of Conservation's power in the coastal marine area

The Minister of Conservation's role in decisions on restricted coastal activities is that of the landowner, on behalf of the public. Restricted coastal activities are major works in public space for private benefit and it is appropriate that the Minister exercise this role. We agree that the end of the hearings process is not the best place to do it, and welcome the suggestion that the role of the Minister in relation to coastal consents be reviewed in phase two of the reforms, but believe it would have been appropriate to leave this provision unamended until decisions had been made on the wider issues, not least of which is the review of the Foreshore and Seabed Act 2004 and the role of Māori customary title in the coastal marine area.

Requiring authorities

One matter where we welcomed the bill as introduced was the removal of the consenting powers of requiring authorities. These powers were designed for public authorities, that is, the Crown, for projects of public good, and include the power to take land (with compensation). These days, requiring authorities are increasingly private organisations acting in their private, for-profit interests and we believe it is not appropriate for them to have such sweeping powers. We are disappointed the committee has chosen to remove this provision. We note that this will form part of the phase two considerations, as giving this role to an Environmental Protection Authority could address concerns that a public authority is required, while ensuring national consistency and avoiding council-vested interest.

Conclusion

The bill is much improved as it leaves select committee and many of our most serious criticisms have been addressed. However, the issues outlined above, our lack of confidence that the bill will make the consenting process any easier or faster, and our belief that many of its components will weaken New Zealand's environmental protection laws and restrict the community's participation in their own places and use of their own natural resources, lead to our decision to continue to oppose the bill.