By Caroline Miller
Part two of this two-part series looks at some of the areas where there are concerns about the impact of the proposed new RMA plans.
This part will specifically address some of the areas where there are concerns about the impact of the proposed new plans.
Creating Better Plans
The Review Panel’s proposals are clearly committed to a streamlined planning system by creating uniform plans across the country. One obvious option is a template plan in keeping with the approach of MfE’s National Planning Standards. Their slow development highlights the enormity of the task of preparing an effective template plan. The business sector, which frequently laments the delays and costs of RMA processes, is the usual proponent for such universal planning controls, particularly those associated with resource consent applications. The Review Panel has emphasised that the EIA requirements for resource consent will remain ‘robust’, suggesting there will be no cost savings for applicants in that expensive area. The time and costs of getting a resource consent will remain central concerns, given that local authority consent statistics over several decades reveal that between 95 and 97% of all consents are granted. These statistics, consistently ignored by politicians and critics, reveals a planning system seemingly largely responsive to development proposals. Local authorities with limited and sometimes declining income streams are obliged to recover some of the costs of consent processes, given they bear plan writing and hearings’ costs, part of the consent hearing costs along with enforcement costs. Applicants have much to gain from being granted a consent so it is fair that they bear these costs. That is not a position that the business and development community find easy to accept.
The attempt to create uniform plans and to reduce consent applications will be achieved by, in effect, ‘sorting out issues’ in plans. This presumably is based on using a dispute resolution process, probably modelled on Environment Court mediation processes. Mediation is rarely an even-handed process. Mediation participants come to the table with varying power and the well-resourced will inevitably achieve more than the modestly resourced individual or community group. This sorting out process will place a significant burden on the public. Communities will have to envisage the type and nature of the development that a plan is allowing in their community at the time the plan is constructed. That, I’d suggest, will prove to be difficult and will reduce community involvement in plan-making processes and communities’ ability to have the community they want. The New Zealand economy is dominated by localised small and medium sized businesses so it is not clear just how many businesses operate nationwide and who would benefit from uniform plans. Given communities have become used in the RMA’s 29-year-life to being an active part of developing and implementing plans, there will be some work to convince them that their involvement might be curtailed at worst, and reduced at best under any new legislation.
It is also vital that the timeframes attached to processes in the new Acts are realistic. The timeframes embedded in the RMA particularly those associated with consent processing are not based on any research on how long it might take to assess a particular type of development. I spent some considerable time fruitlessly searching at the National Archives for just such research when the RMA was created. This means they probably never were realistic timeframes, particularly where a boundary intrusion was subject to the same processing timeframes as a major windfarm proposal. This highlights the need for more involvement in designing the RMA replacement by those who will implement the new legislation. That was not done in the RMA’s creation and as such it created unrealistic expectations as to how the RMA would operate. Planners became the scapegoats for these perceived failures and that has served to undermine the confidence of practitioners.
The New Legislation and Local Democracy
The role of consultation and submission remain vexed questions. Despite New Zealand’s purist commitment to neo-liberalism, consultation is part of most Acts, plans and processes created in that era. Unusually New Zealand has always had third party appeal rights which were expanded under the RMA allowing anyone to make a submission on a plan or consent application. While apocryphal tales abound of vexatious submitters using these opportunities to delay development they are unaffected by, these claims were impossible to verify. My observations, confirmed by planning colleagues, are that submissions to both district plan and consents mainly come from those who are directly affected or who represent an aspect of the public interest. Submitters can and do often bring useful information to the notice of decision makers. In the end it is communities and individuals who will live with the changes wrought by a regional or district plan or a successful resource consent, and that surely gives them a right to be heard. Perhaps what new legislation could and should do is to determine how both the consultation and submission process can be reinvigorated and made more focused. If consultation and submission are to be focused at the plan-making stage then individuals and communities are going to have to be given more help to participate in a meaningful way. That however will require the community to accept that what happens in their community may not always please them as individuals but might achieve something for the community as a whole.
Given the percentage of successful consent applications, submissions seem to offer limited threats to development interests. While tales abound of the costs of submitter-induced delays, including appeals to the Environment Court, that court’s willingness to award costs against unsuccessful appellants provides a significant barrier to idle or vexatious appeals. Until an amendment to the RMA prevented it, the most persistent of these delaying appeals were lodged by competing petrol companies and supermarket chains. Successive amendments to the RMA have encouraged greater use of non and limited notification processes which severely limit who is given the opportunity to make a submission on a resource consent. Council planners are under constant pressure from applicants and their own councils to deem the effects of a proposal to be minor so the application can be processed on a non-notified basis. Again, data shows that most consents are processed on a non-notified basis, again confirming the need to use researched data rather than anecdote on which to base new laws.
If there are to be fewer opportunities for submission and appeal then this will inevitably reduce the work of the resource management lawyers. I remember when such lawyers were a rarity and outside the main centres planning law was a sideline for a local barrister. Appeals to the Planning Tribunal tended to be focused on planning and technical evidence. The lawyers acted more as co-coordinators and conductors whose value often lay in their ability to get an expert witness to contradict themselves. Now many cases at the council hearing, the Environment Court and higher courts rise and fall on legal argument and submission. I remain unconvinced that this always produces the best outcomes and a quick glance at the legal decisions and discussions around the meaning of “minor”, an essential part of the consent decision-making process is a good example. However, the size and complexity of the new plans the Review Panel is suggesting may still provide sufficient work for these lawyers.
One of the more concerning aspects of the review Panel’s proposals focused on decision-making for these new plans. MfE has done much to improve the quality of local body decision-making through the provisions in the RMA which require decision-makers to be accredited in terms of the Making Good Decisions (MGD) Programme. The MGD programmes are available to anyone who is willing to pay the fee and complete the course and this has led to the unexpected development of dedicated RMA Commissioners. As a result, a small group of these Commissioners now do that work on a full-time basis, usually replacing elected decision makers. The Review Panel’s proposal with regard to hearings, again seemingly modelled on the Auckland Unitary Plan processes, would accelerate this process by requiring the use of independent commissioners. While this area is poorly researched it is clear that local body decision makers are gradually being displaced by commissioners which is surely a significant threat to local democracy, and needs more discussion before it is put in place.
Conclusion
Having worked through the maelstrom of the arrival of the RMA and having charted its demise, I am concerned that there is the potential for the new proposals to face similar problems. If an ‘out with the old and in with the new’ approach is used as it was in 1991 then we should expect a long transition period when any gains might be hard to identify. Equally, increasing central government’s direct involvement in the planning’s system will also require a long-term commitment from successive governments, something the RMA rarely achieved. Most importantly we need to ensure that we do learn from the past, retaining and enhancing what has worked and fashioning well-researched new processes. In the rush to promote a unified and possibly template plan approach to producing new plans we need to recognise that in trying to better serve the development community that we may fail to recognise the diversity of New Zealand. One plan will not unify the whole and any attempt to base a new planning system on such concepts will inevitably create a backlash from the community who are the very people who will live with the consequences of that plan’s implementation. Finally, it is essential we spent time fashioning a better planning and resource management system. If not, it may be a case of prepare in haste and repent at leisure.
Caroline Miller is an Associate Professor in the School of People, Environment and Planning at Massey University and is a Fellow of the New Zealand Planning Institute. She is an expert in environmental planning and policy in New Zealand.
Disclaimer: The ideas expressed in this article reflect the author’s views and not necessarily the views of The Big Q.
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