Reforming the RMA: the "Simplify and Streamline" Bill
A key plank of the National Party's election platform was a reform of the RMA within 100 days of office, to streamline and simplify the Act. Shortly after coming to power, the Government set up a Technical Advisory Group to consider amendments to the RMA.
The reforms released on Tuesday represent "Phase One" of National's two phase programme to amend the RMA and overall, have been well received by industry and business. Many people see these reforms as long overdue and that any reforms which make consenting and plan changes processes more efficient and less costly are welcome.
Of course, the "devil is in the detail" and the specific provisions in the Bill will need to be carefully considered when it is released later this month. Interested parties will need to think carefully about how the changes will affect their businesses which amendments should be strongly supported and which ones might pose problems and need deleting or changing. The Government will also no doubt be keen to hear from submitters on the amendments.
The Bill to implement these changes, to be called the Resource Management (Simplify and Streamline) Amendment Bill 2009, is intended to be introduced by mid-February and passed by September this year.
Summary of proposed reforms
The Phase One reforms are, as the name of the Bill suggests, aimed at "streamlining and simplifying" existing processes under the RMA, and introducing new elements to the RMA to, among other things, create new processes, particularly to deal with infrastructure proposals of national significance, and implement strong disincentives to limit delays to statutory processes.
Removing frivolous, vexatious and anti-competitive objections
The specific changes developed to target these issues are:
- Reinstating the Environment Court's power to award security for costs.
- Raising the filing fee at the Environment Court from $55 to $500.
- Incorporating a punitive regime for proceedings bought by "trade competitors", to be utilised where the Court considers that a party bringing, or continuing, a case essentially on a trade competition basis should have punitive damages imposed on it, as well as the requirement to recompense the party whose position was adversely affected.
The power to award security for costs is a reinstatement of the position prior to the Resource Management Amendment Act 2003 which removed the Court's ability to do so. The reinstatement of the ability to apply for security for costs is clearly aimed at limiting frivolous and vexatious appeals which can significantly and unnecessarily delay projects. As a discretionary power, its effectiveness will depend on how the Court uses this tool.
The increase of the Court filing fee is also likely to limit the desire (and ability) of lay persons and community groups to pursue appeals, particularly where those appeals lack merit and / or substance. At present there is almost no financial barrier to lodging an appeal and many persons do so almost as a matter of course, which causes significant delay and cost to others.
National's position on trade competition was well signalled in the lead up to the election. It will be critical to see how the provisions of this proposed regime are drafted in the Bill and proposed to be implemented. One of the issues to consider is that, as has been noted by the courts before, a so-called "trade competitor" may have expertise and experience that can assist a hearing authority.
Tougher fines
The Government intends to toughen up on offences under the RMA, principally by increasing the fines able to be imposed, but also by imposing liability on the Crown for offences:
The maximum fine for committing an offence will be raised from $200,000 to $600,000 for corporate offenders and $300,000 for private individuals.
The Court may require a review of an offender's resource consent.
Enforcement action may be taken against the Crown by local authorities.
A new "Environmental Protection Authority"
An Environmental Protection Authority ("EPA") will be established as a statutory office, with the role and powers of the EPA being exercised in the interim by the Secretary for the Environment. It is intended that the development of the EPA will allow for a separation from the Ministry for the Environment.
The EPA is likely intended to provide a greater separation between policy and regulatory roles, currently all with the Ministry for the Environment. There are likely to be benefits in separating these roles out, leaving the Ministry to focus more on policy issues.
Simplifying and streamlining initiatives
Projects of national significance
The Government's focus on simplifying the RMA process in relation to key infrastructure projects has been a priority. The Government has proposed the following amendments to address this matter, which it also intends will retain (or increase) public confidence in such projects:
- Applications for projects of 'national significance' can be made directly to the new EPA. The existing criteria in the RMA for 'national significance' will remain, but with the addition of a new criterion to recognise the operational infrastructure of a nationwide network utility operator. (This criterion is specifically targeted at projects which, individually, may not be of 'national significance' but are integral to the efficient running of nationally significant networks.)
- The EPA will refer applications which meet the criteria to be decided by a Board of Inquiry. (If the EPA does not consider that the criteria are met by an application, it will be referred back to the local authority.)
- Boards of Inquiry will be chaired by current or former Environment Court judges, who will be required to make a final decision within nine months of the date of notification. The Minister can extend this timeframe out to 18 months provided adequate reasons are provided.
Improving plan development and plan change processes
This set of changes addresses the administrative burden on local authorities in respect of the plan change processes. To reduce the amount of administrative work required to be undertaken, the changes are:
- Removing the ability to make general submissions, or submissions seeking the withdrawal of an entire proposed policy statement or plan change.
- The reporting requirements of local authorities in respect of submissions and further submissions will be modified. Additionally, local authority decisions can deal with submissions by issue rather than addressing each submission.
- The 'non-complying' activity status will be removed, with those activities becoming discretionary activities after a transitional 36 month period.
- Enabling a single plan (and other planning documents) to be produced by regional and territorial authorities.
- Rules in proposed plans will have no legal weight until the decisions on submissions have been notified (with exceptions relating to historic heritage, natural resources and aquaculture management areas).
- Appeals on plans and policy statements are to be limited to questions of law, except where the leave of the Environment Court has been obtained.
- Local authorities will no longer be required to review their plans every 10 years.
Several of these changes may well assist in speeding up the processing of council documents. But these provisions will need close scrutiny. To take one example, concerns have already been expressed over the suggestion that council policy statements and plans may not be able to be appealed to the Environment Court "on their merits" as often such documents are amended significantly through appeal processes to make them more workable. That safeguard could be lost.
Improving resource consent processes
The following changes are proposed to incentivise the timely processing of resource consents:
- Removing the existing presumption in favour of notification, and amending the criteria for when public notification is required.
- Simplifying the reporting requirements for council decisions.
- Removing the ability for plans to provide for blanket tree protection rules in urban areas.
- Limiting the ability for local authorities to 'stop the clock' during requests for further information - this may only occur once.
- All councils must develop a 'discount' policy for late consent processing within 12 months.
- Resource consent hearings must be formally closed no later than ten working days following the completion of the last party's submissions.
These measures seem likely to have a considerable impact and many of them may attract quite strong support from business interest.
Streamlining decision making
The Government is concerned to limit the degree of repetition often faced by applicants in presenting an application to both the council, and as a de novo matter in the Environment Court, particularly when the application is one that will almost certainly be appealed to the Environment Court. To address these concerns, the Government proposes to:
- Allow applicants to nominate whether a local authority hears their application, or whether it is heard by an independent commissioner (the costs being borne by the requestor).
- Allow applicants to request that their application proceed directly to be heard by the Environment Court (provided the local authority agrees).
- Removing the Minister of Conservation's powers of decision making in relation to restricted coastal activities.
- Decisions on notices of requirement will be made by the territorial authority, rather than the requiring authority, to bring this process in line with other consenting processes.
Improving national instruments
Changes are also proposed to manage the potentially significant cost of implementing new National Policy Statements and National Environmental Standards.
If you would like to discuss further the possible effects, impacts or any concerns the proposed reform raises, please contact a member of our Resource Management team, based in Auckland and Wellington.
Supreme Court rules climate change regulation to stay at the national level
The recent Supreme Court decision in Greenpeace New Zealand Incorporated v Genesis Power Ltd was the conclusion to a string of litigation (in which Paul Majuery and Tama Hovell of Russell McVeagh acted for Genesis)considering the correct interpretation of s104E of the RMA 1991. Section 104E dictates the circumstances under which a consent authority can have regard to the effects of airborne greenhouse gas discharges on climate change when granting discharge permits. It states that, when considering an application for a discharge permit, a consent authority cannot have regard to the effects of the discharge on climate change, "except to the extent that the use and development of renewable energy enables a reduction in the discharge into the air of greenhouse gases, in absolute terms or relative to the use and development of non-renewable energy". This qualification has been the contentious issue.
In Greenpeace New Zealand Incorporated v Northland Regional Council ("Mighty River"), the High Court considered whether it was intended that a consent authority be able to consider climate change in relation to applications involving non-renewable energy. In 2006 the Court decided that it was (ie that a consent authority could have regard to the effects that the discharge of greenhouse gasses will have on climate change, in applications using both renewable and non-renewable energy).
In early 2007 Genesis applied to the Auckland Regional Council for resource consent to permit greenhouse gas discharges from a proposed gas-fired (ie non-renewable) electricity generating plant in the Rodney District. Because of the implications of the Mighty River case for its own project, Genesis challenged the High Court's decision in Mighty River. It applied to the High court seeking to clarify the application of s104E to its own proposal and the matter was removed directly to the Court of Appeal. That Court decided that a consent authority can only take into account any reduction in greenhouse gas discharges where the application proposes to use renewable energy. The Court was persuaded by what it saw as a clear legislative policy of nationalising the approach to greenhouse gases and climate change. Greenpeace appealed to the Supreme Court and in a split decision, the majority upheld the judgement of the Court of Appeal.
The Supreme Court looked at other relevant sections of the RMA including sections 7 and 70A. Section 7 directs those exercising functions and powers under the act to have regard to both climate change and the benefits to be derived from the use and development of renewable energy. Section 70A, in similar language to s104E, prohibits regional councils from considering climate change when making rules relating to the control of the discharge, with the same qualifying exception as s104E. The Court looked at the wording of these sections and concluded that there was a clear indication that the exception in sections 70A and 104E was confined to applications relating to renewable energy only.
Legislative history was important. Section 104E was inserted into the RMA by the Resource Management (Energy and Climate) Amendment Act 2004. The underlying policy of the 2004 amendment was to require the negative effects of greenhouse gasses on climate change to be addressed on a national basis (ie through a carbon tax or emissions trading scheme), while enabling the positive effects of the use of renewable energy to be assessed locally. The majority of the Supreme Court considered that this policy was best promoted by reading section 104E in a way that permits the benefits of the use of renewable energy to be recognised only in the context of applications based on renewable energy.
Accordingly, the position is now that local authorities are generally prohibited from having regard to the effects on climate change of the discharge of greenhouse gases, but may do so when making a rule which controls, or considering an application for consent to, an activity involving the use and development of renewable energy.
Land Transport Management Amendment Act 2008
The Land Transport Management Amendment Act 2008 ("Act") came into effect on 1 August 2008. The primary aim of the Act is to improve the transport planning and funding system, established by the Land Transport Act 2003, by integrating national and regional planning. To achieve its aim the Act has implemented many new initiatives changing the way the land transport sector works.
The Act combines the duties of Transit New Zealand and Land Transport New Zealand to form the New Zealand Transport Authority (NZTA). The NZTA, a Crown entity, works in partnership with local and regional authorities, the transport industry and communities to deliver integration, safety, sustainability and value for money in the land transport sector. The main responsibilities of the NZTA are land transport planning, managing the state highway system, regulating access to, and participation in, the land transport network, promotion of land transport safety and sustainability, and the allocation of government funding for land transport. The NZTA is also to give effect to the current GPS in developing policy and take it into account when allocating funding and approving activities.
The length of terms and planning cycles are also altered by the Act. Regional and national strategies are to look ahead 30 years to ensure efficiency and certainty in future planning. The current annual planning cycle has been extended so that it only occurs once every three years to streamline the process.
At the central Government level the Government is required to release a Government Policy Statement (GPS). The Government's planned investment and funding priorities for the next three to six year period will be outlined by a GPS. The first of these for transport was issued in October of last year by Minister of Transport Annette King. This Government Policy Statement on Land Transport Funding 2009/2010-2018/19 set out the main objectives for the land transport sector, how funding would be allocated and how funding would be raised. With the new Government in place, these funding plans have been bought into question.
New Minister of Transport Steven Joyce said on 28 January this year that roading projects that were "ready to go" would be brought forward as part of the Government's infrastructure plans and that funding for public transport, walking and cycling projects was not guaranteed. However it was revealed that the new Government will be working on its own Transport Policy Statement in the coming months that will elaborate on National's short term transport objectives.
At the regional level the Act changes the Regional Land Transport Committee to the Regional Transport Committee (RTC). Each region is required to have a RTC, the Act required the appointment of such by 1 October 2008. The RTC is responsible for the preparation and review of the Regional Land Transport Strategy (RTLS), which is now required once every six years instead of every three years as it was previously.
National's infrastructure plan: "Building for a brighter future"
A major part of National's strategy to tackle the economic recession relies on infrastructure investment and development. National's infrastructure plan "Building for a Brighter Future" proposes to invest $8.55 billion over the next six years on new capital projects, above and beyond already budgeted infrastructure investment. Of that projected amount, $800million in new capital investment is planned for 2009, providing immediate stimulus to New Zealand's economy. These new infrastructure projects are planned across a wide range of sectors, and are to be beyond 'business-as-usual' Crown capital projects. Those projects already announced include: $1500million over six years for the development of an ultra-fast broadband network; $750million over ten years for new roading and transport initiatives, including the Waikato Expressway; $315million for additional prisons; and $500million over three years for a twenty-first century school building programme.
This substantial increase in infrastructure investment is planned alongside reforms aimed at reducing barriers to infrastructure development. Chief among these reforms are the proposed amendments to the Resource Management Act as described above. Other significant reforms include the introduction of a Priority Consent process, which aims to streamline resource consents for major infrastructure projects of critical national importance, also as described above.
It appears that National is committed to a long-term perspective and intends on creating a 20-year National Infrastructure Plan, to be developed in consultation with local government. This will address issues relating to planning, regulation, governance and finance of infrastructure and will include a set of projects to receive central government funding, alongside a timetable for their investment and delivery.
Minister calls in the Turitea Windfarm
National is already implementing its drive to streamline the consenting process for significant infrastructure developments, with Dr Nick Smith's recent decision to "call in" Mighty River Power Ltd's Turitea wind farm development.
The call-in powers under the Resource management Act 1991 allow for the Minister for the Environment to intervene in matters of national significance, by referring an application for consent directly to an independent Board of Inquiry or the Environment Court - in other words, bypassing the Council process that usually occurs first. Whether a proposal is called in depends on a range of factors including the level of public concern or interest, the significance of the use of natural and physical resources and the scale and significance of a proposal.
Mighty River Power Ltd, in August 2008, made joint resource consent applications to both the Tararua District Council and Horizons Regional Council to construct, maintain and operate a wind farm in the Turitea Reserve and adjoining farmland near Palmerston North. The proposed wind farm will comprise up to 122 wind turbines, generating 177-megawatts of power - sufficient renewable electricity to power approximately 140,000 homes.
Dr Nick Smith called the proposal in on 19 December 2008 for referral to a Board of Inquiry as a project of national significance, stating that he considered the project to be of the size and scale that justified a Board of Inquiry under the call in powers. There is also a significant amount of public interest and concern around this proposal. Dr Smith preferred referral to a Board of Inquiry over a direct referral to the Environment Court as a more accessible process for lay submitters.
The Board that will decide the proposal will be chaired by Environment Court Judge Thompson. Also sitting on the Board are Vivian Kloosterman (environmental engineer), John Hudson (landscape architect), Richard Heerdegen (resource management consultant), and Chris Shenton (iwi project manager).
Dr Smith's decision to call this project in is consistent with National's election promise to make the Resource Management Act more efficient and cost effective, in particular for business and infrastructure projects. There are currently four projects which have been called, three under the previous Government, however, Dr Smith has indicated that he anticipates that significantly more projects will be called in this year.
Whenuapai to continue as airforce base
Waitakere City Council's controversial plan change to amend its District Plan to allow for the development of a joint use airport at the Whenuapai Airbase has been "postponed".
Plan Change 22 was notified over two years ago. At the time, the Council said it was concerned with the loss of jobs and economic activity for the District, which would result from the possible withdrawal of the Defence Force from Whenuapai.
Defence Force's withdrawal from Whenuapai to consolidate at Ohakea was never a sure thing. At the time the Plan Change was notified, the Labour Government had said they were considering consolidating sometime after 2014.
The National Government has now laid to rest any doubt about a possible move from Whenuapai. Defence Minister Dr Wayne Mapp confirmed last week that the Airbase will be retained for the Airforce and they will not be moving from Whenuapai. The Government has also announced that over the next few years over $140 million will be spent upgrading both the Whenuapai and Ohakea bases.
The hearing of Plan Change 22, which was scheduled to begin on 9 February 2008 in front of independent commissioners, has now been postponed by the Council, as it awaits the release of a formal Cabinet Paper regarding the future of Whenuapai.
Wellington City Council LTCCP
Wellington City Council ("WCC") will release its Draft 2009-19 Long Term Community Council Plan ("LTCCP") in April of this year. Councils are required to maintain and revise an LTCCP under the Local Government Act 2002. An LTCCP outlines a Council's intended activities, as well as funding and revenue policies (including financial and development contribution), for a 10 year period.
WCC is running a number of roundtable discussions throughout January and February 2009 to obtain input towards the Draft LTCCP from various sector groups. The Draft LTCCP will be issued for formal consultation during April and May 2009, with submissions closing in May 2009. WCC will issue the LTCCP in operative form in June 2009.
In its LTCCP discussion documents, WCC specifically notes the need to maintain existing infrastructure and recognised that rates increased beyond 4% each year are not sustainable.
WCC also notes that it intends to:
- Continue decreasing the commercial rates differential so that it gradually reaches 2.8 (ratepayers will pay 2.8 times more rates for a commercial property than for a residential property of equal value).
- Re-schedule completion of low priority storm water capital projects in order to spread their cost over a longer period of time.
- Defer capital upgrades of parks and beaches for the next three years.
- Provide for the earthquake-proofing of the Karori Tunnel.
- Reduce spending on grants that support economic well-being.
- Continue to plan its support for the Rugby World Cup.
- Explore options for a regional amenities levy.
- Explore options to access government funding to support high speed broadband.
- Explore opportunities for a region-wide building consents service.
We encourage clients with interests in Wellington City to consider the effect that the Draft 2009-2019 LTCCP may have on these interests, and are more than happy to assist with a more detailed review and to prepare submissions where required.
Update on the Royal Commission on Auckland Governance
The Royal Commission on Auckland Governance would not confirm recent media reports that the Commission has already decided a "super-city" governance model will be recommended to the Government.
Commission Chair, the Hon Peter Salmon QC, said the Commission is due to present its report to the Governor-General on 31 March 2009, and "does not intend to release its recommendations before that date."
The Chair confirmed that the Commission is still discussing many aspects of local and regional governance and that its recommendations would be released to the Government first. The Commission's decision will be the subject of an upcoming environmental update.
