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.
Complexity
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?
Uncertainty
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.
