Here’s my submission on the RMA Amendment Bill. Might be a chance to speak at a select committee too!
I make this submission in general opposition to the Resource Management (Simplifying and Streamlining) Amendment Bill. There are some aspects of the bill that I support, but in general I oppose it on the grounds that it will lead to significant adverse effects on the environment and reduce the opportunity for the public to be involved in protecting the environment. It is my opinion that many of the changes to the RMA proposed in this bill will contradict the purpose of the Act, to promote the sustainable management of natural and physical resources.
I make this submission as a concerned individual who has a working knowledge of how the RMA operates. It is my opinion that the RMA is an excellent piece of legislation, and already has (with a few minor tweaks) the flexibility to meet the improved efficiency outcomes the Bill hopes to achieve. I consider many of the ‘problems’ associated with the RMA actually occur because the Act is poorly understood and because the quality of District Plans varies so greatly across the country. In short, it is my opinion that this amendment bill uses a sledgehammer to fix problems when far more delicate changes would suffice.
Parts of the Amendment Bill I support:
As I stated in the introduction, there are aspects of the amendment bill that I support.
1. I support the proposed amendments to reduce the incidence of appeals backed or motivated by trade competition. The long saga involving the opening of the Pak N Save supermarket in Wairau Road has clearly highlighted that change is necessary to avoid such situations happening in the future. Therefore, I support clause 77 of the amendment bill.
2. I support the increasing of penalties for offences proposed in clause 141. There may be some cases where more is to be gained financially by not following the conditions of a resource consent than would be lost through the financial penalty. This is an unacceptable situation, and I support any measures taken to ensure such situations do not occur.
3. I support the establishment of an Environmental Protection Agency. Some standardisation of planning issues across the country is likely to be beneficial, and it is my hope that this agency results in greater environmental protection for the country, rather than allowing less protection.
Parts of the Amendment Bill I oppose:
There are a number of parts of the Amendment Bill that I oppose. In particular, I most strongly oppose clause 151, which would remove the ability for councils to have general tree protection rules.
The specific parts of the Amendment Bill I oppose, the reasons for my opposition and any suggested modifications I have, are detailed below:
1. Requirement for Security for Costs – clause 133
Clause 133 repeals Section 284A of the RMA. This has the effect of allowing the Environment Court to require a party to give security for costs.
I oppose this change on the basis that it will lead to appellants being forced to provide many thousands of dollars in security “up front” if they are to appeal a decision to the Environment Court. This will inevitably lead to situations where only the rich can afford to appeal a decision to the Environment Court – therefore creating a high level of inequity with regards to the ability of less well off people and/or community groups to have their say in the resource management process.
The justification for this amendment is that it will lead to fewer frivolous and/or vexatious appeals to the Environment Court. In my opinion, the amendments proposed are unnecessary, as the Court already has the power (under Section 279(4)) to strike out frivolous and vexatious appeals. 33 cases were struck out between 2006 and 2008 on these grounds, which indicate that the current provisions are working adequately.
I consider the current law, as well as an increase to the filing fee of an Environment Court appeal will suffice in minimising frivolous and vexatious appeals. The proposed change will create a situation where the ability to appeal a decision is highly inequitable, and based on the appellant’s ability to raise a significant amount of money for security, rather than on the strength of their case.
I submit that Clause 133 of the Amendment Bill be deleted.
2. Restrictions on Appealing Plans – clauses 132 & 136
Clauses 132 and 136 restrict the right to appeal a Council Plan to only points of law. Appeals on broader grounds can only be taken with the leave of the Environment Court.
I oppose this change on the basis that it will unfairly restrict the ability of people to appeal Council Plans. Plans form the foundation of the resource consenting process, and therefore it is critical for them to be of the highest possible quality. Plans also have a long shelf-life, of ten years at the moment and potentially longer in the future due to the changes proposed by Clause 56 of the Amendment Bill. Because of this long shelf-life it is critical that a Plan adequately responds to the needs of its community, and that the community has a significant role to play in the creation of that Plan. By restricting public participation in the formation of a Plan, the inevitable outcome in my opinion will be a reduction in the quality of Plans.
Furthermore, requiring appellants to seek leave of the Environment Court may clog the court system and slow down the Council planning process. Therefore, the proposed amendments may in fact be counter-productive by both decreasing the quality of Plans and also slowing down the planning process.
I submit that Clauses 132 and 136 be deleted to the extent that appeals against Council Plans on broader grounds than points of law can be made without the leave of the Environment Court.
3. Removal of Non-Complying Category – clauses 147 & 152
Clauses 147 and 152 will lead to the removing on the ‘non-complying’ activity status in the RMA. After three years all non-complying activities will revert to being discretionary.
I agree that many activities that are currently classified as non-complying, such as the provision of offices within the residential zones of Auckland City, should undoubtedly be classified as something else (either restricted discretionary or discretionary). However, the isolated cases of such wrongly attributed activity statuses should not lead to the complete removal of the non-complying status altogether.
Through section 104D, known as the ‘gateway test’, non-complying activities are subjected to an additional level of scrutiny – ensuring that they are either not inconsistent with the objectives and policies of the District Plan or that they have no more than minor adverse environmental effects. This gateway test provides an appropriate extra level of assessment, which ensures that an activity with significant adverse effect and which is contrary to the objectives and policies of the District Plan cannot be granted consent. Arguably, the gateway test allows the processing of an unacceptable application to be curtailed, thereby increasing the efficiency of the planning process.
Without the non-complying activity status, it is arguable that the relevance and importance of objectives and policies is severely reduced. Activities that are clearly envisaged as “probably unacceptable” will also be lumped together with existing discretionary activities that are “probably acceptable” – creating confusion for the general public and for applicants about what council expects and does not expect.
I submit that clauses 147 and 152 be deleted from the amendment bill, so that non-complying activities are retained.
4. Removal of the ability for a Public Interest Group to join an appeal – clause 131
Clause 131 amends Section 274 of the RMA so that community or interest groups can no longer join the appeals process.
In my opinion this amendment would result in the loss of important input into the decision making process of the Environment Court. Community/interest groups often do not have the resources to submit on every proposal, or may only hear of a proposal once it has reached the environment court. In many cases, such groups have valuable knowledge that could be added, and it would be a loss for this to not be possible.
I understand that the Environment Court is not an appropriate location for an entire resource consent process to ‘begin again’ if a large number of interest groups join an appeal. However, I consider that existing rules and procedures ensure that the scope of an appeal is not unnecessarily broadened through the inclusion of such additional parties.
The status of an organisation such as the New Zealand Historic Places Trust is uncertain under the proposed amendment. The NZHPT is the primary national advocate for the protection and preservation of historic heritage – so therefore should certainly be allowed to join Environment Court appeals through section 274 of the RMA. If this clause is to be retained, then it should be modified to ensure that the NZHPT is able to join an appeal.
I submit that clause 131 be deleted from the amendment bill. If the clause is not deleted, then I submit that it be modified to ensure that the New Zealand Historic Places Trust is able to join appeals through section 274 of the RMA.
5. Removal of General Tree Protection Rules – clause 151
Clause 151 revokes all existing general tree protection rules in District Plans, and bans councils from proposing such rules in the future.
Of all the changes proposed in the Amendment Bill, I oppose clause 151 the strongest. This opposition is based on my opinion that the clause will result in widespread environmental destruction, that it strongly infringes upon the rights of council to protect the environment, that it will result in councils having to undertake an enormous amount of work to individually schedule each tree they wish to protect and that it is clearly in contradiction with the purpose and principles of the RMA.
General tree protection rules are generally applied in urban areas to ensure that the environmental, amenity and community benefits of large and mature trees can be retained without having to undertake an enormous amount of work to individually schedule each tree under a council’s jurisdiction to protect it. Blanket protection is also applied to historic housing, most notably in Auckland City’s Residential 1 zone – where each house within that zone that was constructed before 1940 requires a resource consent if it is to be demolished or significantly modified. Clearly, there is an acceptance in the community of blanket controls.
The number of tree consents applied for across the cities and districts of New Zealand clearly indicate that there is a significant tension between allowing the removal of trees for a variety of reasons, and retaining them for their environmental, amenity and community benefits. All urban councils within the Auckland area have general tree protection rules, indicating that it is widely accepted that protecting trees through this mechanism is effective and efficient. The tension between removing and retaining large and mature trees is a fundamental planning issue – comparing the private benefits of removal with the public benefit of retention, and therefore the resource consent process is an appropriate way in which the tension can be resolved. If councils are unable to create general tree protection rules, then the balance between private benefit and public good will be completely lost – with the clear outcome of many large and mature trees being lost throughout the country’s urban areas. This result would be a disastrous environmental outcome, the exact outcome the RMA is designed to prevent, or at least require a resource consenting process to be undertaken before such a situation can happen.
Councils are required, by the Local Government Act, to promote the social, economic, cultural and environmental wellbeing of the area they have jurisdiction over. Clearly, many councils have decided – through the District Plan process with significant public input – that general tree protection rules are a significant way in which they can achieve their environmental objectives. To my knowledge, there are very few situations where the RMA specifically forbids council from enacting a particular rule in their Plans and to do so over an issue as fundamental as tree protection seems completely nonsensical and at odds with the purpose of the RMA.
If councils are to continue to protect mature trees within their jurisdiction, then the proposed amendment will mean that they will have to schedule such trees. Whilst a significant number of trees are already scheduled in District Plans, the vast majority of generally protected trees are not. The additional work required by councils to schedule important trees will be immense, and certainly contradicts the overall goal of the amendment bill to streamline and simplify the planning process.
The purpose and principles of the RMA are outlined in Part 2 of the Act. Section 5 of the Act outlines the purpose of the Act, to promote the sustainable management of natural and physical resources. Clearly, large and mature trees are a natural resource – so therefore the Act is required to provide for their sustainable management. In my opinion, it is blatantly clear that clause 151 completely contradicts this requirement, as without general protection, large and mature trees are very unlikely to be ‘sustainably managed’. Section 6 of the Act outlines matters of national importance – which District Plans are required to give effect to. Section 6(b) and 6(c) are both related to the protection of trees, and are undermined by the proposed amendment. Section 7 details other matters of importance that should be taken into account: and of particular note are: (c) – the maintenance and enhancement of amenity values; (d) – the intrinsic values of ecosystems; (f) – maintenance and enhancement of the quality of the environment; and (g) – any finite characteristics of natural and physical resources. All these “other matters” will be significantly compromised by the proposed amendments.
I understand that there are some problems relating to existing general tree protection rules. For a start, they can discourage landowners from planting large trees in the first place – as they do not want to restrict future redevelopment options. Situations where landowners decide to remove a tree just before it reaches the required height for protection are also potentially common, creating another unforeseen consequence where fairly large trees are removed due to the very rules that are meant to protect them. Finally, there are valid concerns that some councils have overly restricted assessment criteria that decide whether a tree should be retained or removed. This issue was highlighted in the recent Woolley Trust v Auckland City Council case, with the conclusion that council’s tree protection rules were inadequately drafted. However, these problems are not sufficient for such rules to be completely revoked by the RMA.
Clearly, there must be a better way for the above issues to be resolved that does not result in the widespread destruction of large and mature trees in New Zealand’s towns and cities. A possible alternative may involve a sped-up consenting process for tree consents with standard assessment criteria across the country that takes into account not only the health of the tree in question, but also the wider requirements of Section 5 of the RMA. Allowing general tree protection rules to be revoked will result in environmental destruction on a widespread scale, and would completely contradict the purpose of the RMA.
Conclusions:
In my opinion there are a number of aspects to the proposed Amendment Bill that need to be removed or modified. I have attempted to be as balanced as possible in my opinion towards this bill, and have supported aspects of it that I believe will be of benefit. However, there are certain parts of the bill that I consider will have significantly adverse effects – both on the environment and on the ability of the public to participate in the resource management process.
It is easy to criticise the RMA as being a ‘handbrake’ on development, yet at the same time it is easy to notice the environmental damage that is happening throughout the country – seemingly unchecked by the very piece of legislation that is supposed to stop this from happening. Resource management planning is about balancing the private benefit of development with the public good, in particular the environment. It is my opinion that the proposed changes to the RMA go too far in advancing private benefits and will result in a significant loss of public good, through damage to the environment. This is particularly the case with regard to the proposed changes to general tree protection rules.
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Thanks for the post, a great read.