Reforms to the RMA – mere tinkering or complete overhaul?

September 12, 2019

Gerard Cleary Partner

Our planning system is not functioning effectively. This statement could be attributed to everyone interested in, or affected by, the development of our natural and physical resources.

On one side, environmentalists claim that the system has failed to protect our waterways, coastlines, landscapes and indigenous fauna and flora. Equally, the development sector claims that the system is stifling its ability to provide for development critical to the enabling of the social and economic wellbeing of NZ society. There is no shortage of evidence to support both these claims.

The Resource Management Act 1991 (RMA) is an obvious target for critics of our planning system.  It is an undeniably complex piece of legislation, one that impacts on the use and management of all of New Zealand’s resources. The RMA has been the subject of multiple changes since its enactment, with each change promoted by the government of the time as making the Act more streamlined, less complex, and more efficient (or buzzwords to like effect).  Some successful changes include the curbing of the worst excesses of trade competitors and, to some extent, the enhancement of plan development processes. Overall however, the substance of the RMA has changed little over the years.

The latest RMA reforms foreshadowed by the Environment Minister David Parker are set to be rolled out in two separate stages:

  • Stage 1, which is to contain a “narrowly-focused set of amendments” to the RMA¸ which will largely reverse widely criticised changes made to the RMA by the Resource Legislation Amendment Act
  • Stage 2, which will involve a comprehensive review of all aspects of New Zealand’s resource management system.

Stage 1 proposals of note

  1. The Government intends to reinstate the right to appeal to the Environment Court against consent authority decisions on “residential activities” and the subdivision of land. As with all changes, there are positives and negatives, the key positive of course being the ability of an applicant to challenge either a negative decision in its entirety, or the imposition of potentially unreasonable conditions if consent is granted. The downside of course is that submitters in opposition can also appeal a positive decision which at the very least will result in a delay to the development until the appeal is resolved by the Environment Court.
  2. The Government proposes to introduce the right for anyone, dissatisfied with a council’s notification decision on a resource consent, to challenge that decision by seeking a declaration from the Environment Court. At present, a challenge to a decision on notification can only be made via an application for judicial review to the High Court. Implicitly, the proposed change will improve access to justice, albeit at the obvious risk of creating a greater level of uncertainty for the holders of a consent granted on a non-notified basis. The exact details of this change are as yet unknown and should be carefully scrutinised once available.

 Stage 2 proposals of note

The proposed Stage 2 is the most attention grabbing, contemplating as it does the possibility of a significant overhaul of our planning system.  Initial responsibility for progressing Stage 2 has been delegated to a Resource Management Review Panel, chaired by former Court of Appeal Judge Tony Randerson QC. The Review Panel has been provided with terms of reference that include the direction to resolve a raft of key issues including:

  • removing unnecessary complexity from the RMA
  • recognising objectives for development (including housing and urban development and infrastructure networks and projects
  • aligning land use planning and regulation with infrastructure planning and funding through spatial planning
  • ensuring that Maori have a role in the resource management system
  • improving the quality of plans
  • reducing the complexity of consent processes
  • allocating roles in the system to central and local government, the Environment Court and other institutions such as Independent Hearings Panels.

The Review Panel is scheduled to report back to Government in mid-late 2020, after which cabinet will decide how to proceed in terms of legislative amendments.

Undoubtedly, the recent announcement on RMA reform demonstrates that the impetus for major amendments to the RMA has reached the point where the prospect of real and meaningful change to New Zealand’s management of its natural and built resources has become very real. Bearing in mind of course the multiplicity of competing interests affected by reform of the RMA and the politicised nature of any legislative reform, we should not expect change to be easily achievable. There are grounds however for cautious optimism.

 

This article first appeared in NZ Construction News Aug/Sept 2019 and is republished here with their kind permission. 

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