Wednesday, October 22, 2014

Rebooting New Zealand's Resource Management Act

Do we continue to tinker, or do we act on the Act?

Following many years working in strategy, planning, and development I have some suggestions for reforming the Resource Management Act 1991 (RMA), as many others do!
My first proposal is for more of the same – incremental improvements in the hope of streamlining the Act. This has been the response favoured by Ministerial advisory groups over the years, tinkering with process and increasing complexity without necessarily improving outcomes. If tinkering is the only option my suggestion, below, is for a stronger focus on clarity of purpose, defensibility of policies, and accessible plans. 

My preferred proposal is to return the Act to a focus on environmental matters by locating the onus for setting and applying standards in a scientifically strong central agency operating through regional offices.  Through this an environmental envelope can be established within which local communities – including resource users – can pursue development, moderated, perhaps, under the provisions of the Local Government Act 2002 (LGA).  This Act, too, would needs refinement though, to avoid it becoming as litigious and onerous as today's RMA.  Under the proposed arrangement a clear line can be maintained between protecting environmental assets and advancing local development.

Before outlining these proposals, a quick bit of background on costs and why they are so high. 


The costs of environmental regulation

These proposals\have been developed following analysis of the costs of the RMA. These include:

·        Substantial overheads associated with preparing and reviewing plans within councils;

·        The costs incurred by resource users, interest groups, and the public in responding to proposed plans and plan changes by way of submission and appeal;

·        The costs of applying for and responding to resource consents, including council costs (which are usually charged back to the applicant so that there is little incentive for containing them);

·        The costs of making submissions on or objecting to notified applications  for consents;

·        The cost of complying with any conditions imposed by the plan or as a condition of consent, and

·        The opportunity costs of development foregone or delayed by ambiguous or specious environmental claims and conditions.
Costs can be justified by the need to maintain environmental standards . They are the price society pays to manage natural resources wisely. But how much is too much?  And what if the societal costs are high and the environmental benefits no more than modest?

The costs and benefits of environmental regulation are hard to measure. But not attempting to do so means that it is too easy for costs to be excessive and benefits limited.  Given this prospect, procedural issues, attitudinal differences, and an adversarial approach all-to-often prevail in the dealings between resource users and councils.  Particularly problematic is the failure at the objective setting and policy development stages of planning to appreciate the difficulties of applying and enforcing rules if we are to pursue other societal objective.  

Consequently, a fractured and fraught process, often based on cursory or partial evaluation, may impede the opportunities for society to provide for its economic and social needs while failing to deliver the desired environmental outcomes.

Mission creep

High costs result when matters not obviously to do with the impact of activities on the natural environment are written into plans and weighed into decisions on applications for resource consents.  It is timely to ask how this situation arose, and how we might put it behind us.

While the original intent of the Act was to protect the physical attributes of the natural environment, its scope today has been extended to include the built environment.  From the Act:

environment includes—

(a)        ecosystems and their constituent parts, including people and communities; and
            (b)        all natural and physical resources; and
            (c)        amenity values; and
            (d)        the social, economic, aesthetic, and cultural conditions which affect the matters
                        stated in paragraphs (a) to (c) or which are affected by those matters

The definition of amenity values is also all-encompassing:

amenity values means those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes,

... as is the definition of natural and physical resources through to "all structures":

natural and physical resources includes land, water, air, soil, minerals, and energy, all forms of plants and animals (whether native to New Zealand or introduced), and all structures.

The result? A statute designed to manage the effects of development on the natural environment is now being used in attempts to manage social and economic matters.


Mission creep explains the size and complexity of today’s plans.  Yet the Minister’s Technical Advisory Group in 2012 suggested accepting this by further reducing emphasis on the natural environment and adopting a perspective informed simply by “general principles”.  The statute was not designed for this expansion and practitioners are poorly equipped to apply it. 

This raises the question of how far tinkering with an act that was arguably never implemented as intended simply continues to move it away from its purpose.  Has the departure from the original environmental principles reached the point that the Act is today counter-productive?


Complexity of process arising from a history of tinkering is a source of uncertainty.  Uncertainty consumes time and drives up costs. 

Complexity means that resource users must rely on a host of professionals to progress development even when the scope of a proposal is modest or consistent with the objectives of a plan. They include the planning professionals who specialise in writing and interpreting plans.  Lawyers are needed to advise on how best to navigate the process, represent protagonists views, and search ever-expanding case law for precedents and principles.  Physical scientists assess and propose responses to effects on the natural environment, and social scientists are called on increasingly to deal with possible economic, community, and cultural effects.  

And in the name of a better built environment, urban designers now participate in a process under a statue never intended to achieve urban design outcomes and not obviously equipped to deliver them. Codifying rules to enforce standards on the creativity, visions, and collectivity that underpin the urban landscape is not something the RMA was intended to do, if indeed it can be done at all. And as with the other specialists there is not often consensus among the experts on what constitutes a good outcome.

Uncertainty is not measured just by the length of time plan change and consent processes take, the number of experts involved, or by the lottery-like nature of the decision process.  It is compounded by the discretion consenting officers may exercise in approving, rejecting, or modifying applications for resource consent.  Such discretion often appears arbitrary, ad hoc, and inconsistent, although it seems generally to start from the conservative position of preserving the status quo. 

And how, in all this complexity, can communities hope to have a consistent or coherent say on the development outcomes they might favour?


Option 1: Further Amendments to the RMA

The first option is to continue to amend the RMA but in a fundamental way.  My proposal calls for a focus on the quality of plans and plan-making on the grounds that simplicity and clarity will eliminate the need for discretionary rules, increase certainty for resource users (including those contemplating activities best prohibited), and reduce consent processing demands.  This might be achieved by:

1.     Enforcing the simplification and reduction in size and scope of district plans by requiring that they include objectives only when a causal link can be established between them, the policies identified to implement them, the efficacy of rules under those policies, and their likely outcomes:

2.     Requiring a risk assessment likely costs against the probability of successful implementation and the magnitude of likely benefits (defined with reference to the relevant objectives);

3.     A commitment to monitoring outcomes and to modifying or eliminating objectives and policies if rules are not delivering against objectives;

4.     Eliminating non-complying activity status as far as possible in plans, with activities permitted, subject to explicit conditions, or prohibited, and the basis for any remaining discretion fully prescribed in the plan;

5.     A commitment to pre-application meetings for resource consents between policy officers, applicants, and their advisers.  All too often this meeting of minds (or at least clarification of differences among experts) only occurs at the behest of the Environmental Court following a council decision and subsequent appeals!

6.     Requiring notification to be used sparingly, restricted to matters which have potentially significant environmental effects that were not anticipated at the time of plan preparation and therefore fall outside plan parameters;

7.     Ensuring that plan preparation gives all parties the opportunity to influence objectives, policies, and rules, requiring quality consultation at each stage based on a “no surprises” principle;

8.     Allowing disciplines only indirectly associated with the effects of development on the environment to participate in plan preparation rather than implementation;

9.     Maintaining clear separation of responsibilities for objective setting (by elected representatives advised by their executive),  policy and plan development (the ambit of specialist policy analysts and planners), and implementation.  Provided that plans have clarity and practical rules implementation, which covers confirming permitted activity status, processing consents, and enforcing them, is largely a procedural matter that can be undertaken by people with appropriate technical training.  This is an area in which the current initiative to introduce competition in the planning process may have something to offer.

10.  Training for policy analysts, planners, and consent officers should ensure that their skills and experience meet community expectations for and understanding of development.  I would expect the educational and institutional paths for development of the planning profession to be reviewed to support any further reform of the RMA.

Time to Move on

The preceding suggestions constitute just another in a string of propositions for improving the RMA.  Most of these have simply complicated matters. It is instructive that the Government sees it as appropriate to truncate RMA processes for the preparation of Auckland's unitary plan and circumvent the Act altogether to advance residential development there and elsewhere. 

If nothing else, this tells us the Act is not working, and it is time to move beyond incremental statutory adjustment.

Option 2: Starting over – centrally-driven regional environmental plans

More fundamental reform would confine the RMA to managing the natural environment, to measures that manage, preserve, and enhance biodiversity, soils, and air and water quality in the face of the pressures of development, production, habitation and consumption. The principles of avoiding, remedying or mitigating effects can be maintained and, indeed, strengthened.  However, the grounds for intervention would be based on a combination of international protocols and nationally agreed standards mediated by local physical conditions, all subject to rigorous evaluation.

Form follows function

Changing the way things are done requires breaking down institutional inertia.  A reorientation of statutes and practices cannot easily be imposed on existing organisations, as we learned in the difficult and protracted transition from the Town and Country Planning Act to the RMA.

It is proposed that a national environmental agency should absorb the functions of the Ministry for the Environment and the current Environmental Protection Authority.  It would also take over consenting responsibilities for the Department of Conservation which would consequently become more clearly the manager of and advocate for conservation values and the conservation estate.

Given that regional councils are generally effective in environmental management, it makes sense to transform them into the regional offices of the environmental agency with responsibility for delivering nationally mandated environmental outcomes locally. They could develop regional environmental plans to do this and have delegated authority for issuing consents and enforcing plan rules.

The knowledge and skills base of regional offices would ensure that the rules to implement policy are sensitive to local conditions.  Rules should also reflect extensive consultation in the course of plan preparation, including territorial councils.  Proposed regional environmental plans could be challenged, perhaps before panels comprising independent commissioners and local council members.  The Environment Court would continue as the final arbiter on matters of substance. 

The Office of the Parliamentary Commissioner of the Environment could assume an Ombudsman role. Its independence would counter the potential for any partisan political agenda to over-ride the primary focus of a national agency on the quality of the natural environment.

Managing development

The impact of decisions on land use, infrastructure, and urban form suggests that many matters that councils are trying to deal with through the RMA may be better dealt with under the Local Government Act.

The LGA requires councils to provide for the social, economic, cultural, and environmental well-being of communities when they prioritise, plan, and budget their expenditure. The change to the RMA proposed here would exclude councils from controlling matters to do with the natural environment though.  Instead they would be required to comply with regional environmental plans.

Local regulation of development may be through spatial plans which map a council’s commitments as defined in its long-term community plan.  They would include provision for future land use, expectations for built form, and the infrastructure and public investment required to achieve desired development.

Strengthening the local in local government
Separating environmental regulation from planning for the built environment could pave the way for significant institutional changes in local government.  Territorial boundaries may be modified to reflect communities of interest and not simply physical boundaries.  The shape and composition of local boards could be aligned more clearly with the different circumstances, values, and needs associated with sub-urban areas, smaller settlements, and rural areas. 

Changes would be required in Council Controlled Organisations.  CCO business plans often influence development outside plans prepared under the RMA.  Consequently, CCOs may act as de facto consent authorities when their corporate plans do not provide support for the land uses a council requires. 

To promote integrated planning a greater onus might be placed on CCOs to implement agreed spatial plans. Among other things, this would mean that the fiscal consequences of spatial plans would need to be established at the outset. 


In summary

The proposed changes to function and institutional form suggest a different way forward. 

1.     They consolidate responsibility for environmental regulation in a national agency operating through regional offices;

2.     The agency would respond to international environmental commitments, central policy direction, and the state of the natural environment in the regions;

3.     National policies and standards would be founded on robust scientific evidence and implemented through regional environmental plans subject to rigorous evaluation and prepared in consultation with local communities;

4.     Territorial councils would be bound by these plans but responsible for community well-being within the development envelope established by them.  Their role would focus on ensuring adequate land is available for development, programming infrastructure, providing public services and amenities, and maintaining the quality of the built environment (particularly with reference to efficiency and safety);

5.     Boards would have the capacity to influence the built environment in the interests of local communities;

6.     CCOs would be accountable for the delivery of the infrastructure required to support spatial plans (but need not have a monopoly in this role).
While reducing local autonomy over environmental matters, the capacity of spatial plans to respond to social, cultural, and economic matters should be enhanced, albeit in a light-handed manner, especially as a major cost to councils – that of environmental regulation – is shifted to the taxpayer. 

At the same time, the transparency of council plans and council accountability will be raised as their mandate is clarified and conflicts around the RMA are reduced.


mark said...

I think your option 2 goes some way to addressing a basic issue. The RMA was designed to a large extend to protect the environment - that to me is the wider common areas eg air, water etc. Your regional body could cover that.

The other area is more where a property owner wants to do something at the expense of another property - eg shading, creating noise etc. These are covered under common law. Often the knee jerk reaction is to call these people NIMBY's - but most are just trying to protect their right to the peaceful enjoyment of their property.
This is the area that shows up the flaws in the RMA process. Both Council trying to anticipate every effect, and the gravy train in dealing with them - from planners, experts lawyers etc. It also tends to remove the risk from the applicant, as they then have a "right" to impact another property owner.
There needs to be a system that supports those property rights, but allows parties to negotiate, or even be bought out or compensated.
The RMA process with its "bought" experts (often proven wrong later) favours the applicant with deep pockets, and in many cases have reduced the amenity and hence value of adjoining properties. How to quickly and cheaply deal with this area is the question - I'm not sure what the answer is - but the impacts on the little property owner, whether it be a huge Bunnings store next to you, or an expanded Supermarket removing houses etc, is what drives local govt to make more and more rules to try and protect the little guy ie the voters!
There needs to be a cheap fact based process to allow parties to negotiate a loss of amenity, or to kill a proposal. One that respects both sides of property rights - to do what I want on my land - but I can't impact on my neighbours rights.
A two tier approach may be best.

Phil McDermott said...

Thanks Mark. I wonder whether the issue you raise with respect to the impact of disruptive developments on existing rights (and expectations) would be easier to deal with if plans were more definitive in the first place. Clarity of current zones, fewer mixed use zones (or greater clarity over what and what not to put in the mix), and recourse to negotiated outcomes where conflicts do arise might be a much more effective approach to the inevitable impact of changing land uses on third parties. Recourse to common law might most effectively bring those parties into the frame. Again, though, the integrity of the plans in the first place and their accessibility generally would help to avoid such situations.

Mark said...

Thanks Phil
The problem is that with the RMA the plans are just the starting point. So no matter how "definitive" the plans are, the RMA takes an effects based approach to an application. So the plan is the start for people to push beyond - hence the 4 storey limit becoming 6 on application. Under PAUP almost all of those breaches are restricted Disc and can't be notified, even to the limited extent of a neighbours sign off.
The RMA has few tools to make a plan become meaningful - really only making things "prohibited", and that would still be challenged.
It's really the up front guarantee that an applicant gets that makes it worthwhile to invest and push the envelope. And the lack of compensation to affected parties. I've seen a couple proven cases where a property lost 50-60k on sale due to shading - due to an above permitted height done as "effects less than minor".
Current plan/RMA hearing Crt works for those major environmental impact projects - dams, wind farms etc, but where it's the un-resourced little guy, on minor site issues, it becomes pointless.