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New Zealand Journal of Environmental Law |
Last Updated: 12 February 2023
267
Sustainable Development v Sustainable Management:
The Interface Between the Local Government Act and the Resource Management Act
Stephanie E Curran*
Two principal Acts, the Resource Management Act 1991 and the Local Government Act of 2002, determine the behaviour of New Zealand’s local government. Despite the common principle of sustainability at their core the Acts diverge as to its application. The former Act espouses sustainable management whilst the latter demands a sustainable development approach. The contrast between these applications becomes apparent where there is potential overlap of actions required by each Act. This article charts the origins of sustainability in New Zealand with the application of sustainable management and considers in what manner the sustainable development approach should be interpreted. It further considers those areas in which the requirements of the Local Government Act will conflict with processes under the Resource Management Act, including the requirement to apply the sustainable development approach to decision-making procedures, a stricter method for consultation and a consideration of sustainable development and biodiversity when executing planning responsibilities.
1. INTRODUCTION
With the enactment of the 2002 Local Government Act New Zealand’s local and regional authorities were given a broad mandate with which to involve themselves in economic, social, environmental and cultural issues. These four elements meld, together with a duty to our descendants and a concern for the environment, into the recent revolution in global governance, the principle of sustainable development. This principle is intended to permeate every action by local authorities, a proposition contradictory to the obligation of the very same local authorities to follow the narrower concept of sustainable management when fulfilling their functions under the Resource Management Act. This raises the issue of the relationship between these two dominant Acts, which together govern the behaviour of local government in New Zealand.
2. SUSTAINABILITY IN NEW ZEALAND
A century after the industrial revolution changed the face of society the world turned to confront the price that progress was exacting from the environment, in the form of pollution, poverty and disease. These were modern issues that could only be resolved with cooperative and integrative regulation on a global scale. In 1972 at The United Nations Conference on Human Development international environmental law was born and the link between development and sustainability was forged.1 Within that first decade a proliferation of universal policy statements and international legal instruments were negotiated, all providing for the protection of the environment. But it was the Brundtland Report in 1987 that named and hoisted the principle of Sustainable Development to world prominence with the definition “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”
It was this global conversion to sustainability that led New Zealand to integrate the principle into domestic law. However, it has been with a reluctant hesitancy that New Zealand has followed the global drift. The transition from environmentalism to sustainable development is only now occurring, as successive governments have ignored their Agenda 21 commitments and “have not provided the leadership necessary to support and guide sustainable development in New Zealand”.2 Although New Zealand was a founding signatory of the Rio Declaration, Agenda 21, and the Climate Change3 and Biodiversity
Conventions4 of the same year the government only announced its intention to produce a national strategy on sustainable development in 2001, nine years after the Earth Summit.5 This stall in implementation has placed New Zealand far behind most OECD countries6 and has occurred despite the general international trend and in contrast with New Zealand’s own early attempt at sustainability; the Resource Management Act (RMA). In addition to the legislation discussed by this paper, four other New Zealand statutes espouse sustainability; the Environment Act 1986, Fisheries Act 1996, Hazardous Substances and New Organisms Act 1996 and the Energy Efficiency and Conservation Act 2000. Each of these statutes contain the element of sustainability and each stems from the Resource Management Act, the pioneering piece of legislation with which New Zealand embedded sustainability into its ethos.
Ironically, however, it may be the RMA that has contributed to New Zealand’s fall behind other developed nations. From its enactment in 1991 there has been little application of the complex requirements of advancing sustainable development and improving environmental management, a situation possibly due to a misunderstanding of the principles involved.7 While it introduced sustainability to our nation’s vocabulary the RMA shied away from true sustainable development and implemented sustainable management in its place. A comparison of these concepts will be carried out below but it is generally established that the latter is a restricted version of the former with the Parliamentary Commissioner for the Environment stating that the RMA has limited New Zealand’s use of sustainability to environmental issues and has “slowed the adoption of sustainability principles into economic and social policies”.8
In addition to the Acts noted above, dozens of strategies have been developed incorporating or being built upon the foundations of sustainability. Such strategies embrace several areas of importance and include Biodiversity,9 Coastal and Marine areas,10 Transport,11 Waste,12 and Water13 but are generally limited to environmental areas. Similarly, although sustainable development is intended
to contain economic and social messages, a review of New Zealand legislation reveals that no statutes covering those matters have incorporated sustainability. Although sustainability has permeated world policy, and New Zealand has clearly taken heed, it remains a policy upon the outskirts of mainstream legislation, a situation that has also been attributed to a diluted Resource Management Act.14 In New Zealand at least, sustainability continues to be viewed as only an environmental issue. The notable exception is the Local Governmental Act (LGA) 2002.
2.1 The Local Government Act 2002
As a Bill this legislation continued the custom and restrained from implementing the full promise of sustainable development. However, as the readings progressed so too did the strength of the principle. The purpose of the original Bill provided for community well-being and prudent stewardship:
The purpose of this Act is to—
(c) enable local authorities to play a broad role in promoting the sustainable social, economic, environmental, and cultural well-being of their communities;
(h) provide for—(i) the prudent stewardship of resources by local authorities; and
(ii) the efficient and effective use of resources by local authorities.
While the Bill provided for sustainable well-being for both current and future communities no provision acknowledged, protected or guaranteed the intrinsic value of the environment. The environment is only accorded instrumental value, much in the same manner as the RMA accords value for its “life-supporting capacity.” Little guidance is given as to how sustainable well-being is to be actioned nor is an integration of issues provided for.
The final text of the Local Government Act (LGA) is greater in width and depth than its originating Bill, providing guidance, though limited, on the criteria for sustainability whilst giving expansive protection and concern for the environment and its usage. Within this Act the principle of sustainable development has clearly stepped into the light. Section 3 affirms that the purpose of the Act is to “provide for democratic and effective local government that recognises the diversity of New Zealand communities”. In order to achieve this, a framework is provided which, determines the activities that are to be undertaken
by local government and the manner in which they are to be taken, promotes accountability and “provide(s) for local authorities to play a broad role in promoting the social, economic, environmental, and cultural well-being of their communities, taking a sustainable development approach.”
This framework recognises the importance of communities whilst providing recognition for the four elements which join together to compose an ideal community; social, economic, environmental and cultural well-being. This awareness is significantly different to both the prior drafts of the Bill and the original 1974 Act.15 However, this awareness is countered by difficulties. Sustainable development is not defined by the Act nor is its ensuing approach, although as a process rather than an outcome sustainable development is naturally difficult to define. Applying the sustainable development approach is not included as the purpose of local government nor its role, though the components of sustainable development are repeated: “the social, economic, environmental and cultural well-being of communities, in the present and the future.”16 Additionally, the approach is to be taken by the local authority only to promote well-being, not to ensure or protect it.
Although the Act generally fails to identify when the sustainable development approach is to be taken, Section 14 outlines what is to be taken into account when the approach is taken-
the social, economic, and cultural well-being of people and communities; and
Despite section 14(2) allowing for these concerns to be disregarded in a situation of conflict and regardless of other difficulties it appears evident that the Government intended local authorities to be subject to a requirement to consider and apply sustainable development, or at least the identified components of sustainable development. This must be concluded from the inclusion of sustainable development within the purpose of the Act itself and the continued references to the elements of sustainable development; integration of considerations and generational well-being. It is to be assumed that at each point the elements identified as sustainable development are referred to there is a requirement to take a sustainable development approach. Upon this basis, sustainability colours the entire Act and the actions of every local authority.
2.2 The Sustainable Development Approach
The LGA provides only a skeleton framework that gives guidance as to the meaning of sustainable development and how it is to be applied. It confirms that sustainability is to be attached to situations of social, economic, environmental and cultural concern and provides for account to be taken of social, economic and cultural well-being, the need for care of the environment and the foreseeable needs of future generations. This gives some guidance as to the intent of legislators but how does their vision of a sustainable development approach coalesce with the principle of sustainable development?
Sustainable Development has been described as both an “oxymoron”17 and a “logical partnership”18 the truth of which depends upon political, ethical and jurisprudential views. It differs greatly from the environmentalism predominant, in New Zealand and globally, over earlier decades. Environmentalism was commonly “activism to protect nature from the ravages of the economy,” a battle in which progress was by definition unsustainable.19 Comparatively, sustainable development has been described as “the journey towards the elusive goal of ‘sustainability’”.20 It is a tool for achieving a long-term goal of balance between resources and growth, while providing for the current and the future. Growth and development are implicit aspects of sustainable development and are recognised as necessities of human society and welfare. However, the effectiveness of both sustainability and sustainable development lies in the ability to balance or limit growth within the capacity of ecology to support it. Concerns such as the limits of finite non-renewable resources, the capacity of the biosphere to absorb the results of human activities and the ability of strained eco-systems to continue to sustain life demand a realistic rationing of both growth and resources. Sustainable development is the instrument to direct this and possibly “the only meaningful cure to the problems that face the world”.21The Sustainable Development principle extends far beyond the confines of the environment, or rather; it extends the confines of conventional environment. It demands identification and recognition of the linkages between economic, social and environmental factors while stressing their compatibility and yet their
competitiveness in the short-term.22 The Brundtland Report identified this as an essential premise, that, regardless of the exact definition chosen, any strategy for sustainable development would need to provide for this integration of economic, social and environmental considerations in decision-making.23 The result is a decision against extremes, be they polar opposites. For example, unsustainable behaviour includes both clearance of forest for agriculture and also degradation of the country’s agricultural base. A failure to recognise these aspects of growth has been seen to result in a general failure to properly implement sustainable development.24 The local government’s sustainable development approach explicitly recognises these factor and even extends it by providing for cultural considerations. This addition occurred relatively late in the Bill’s life and without it the Act may have been found inconsistent with the Treaty of Waitangi in which the holistic and spiritual views of the Maori are to be protected. Regardless, the combination of these issues is an essential ingredient if the approach is to be true to the principle.
A key basis of sustainability is that resources must be available for our descendants to adequately provide for themselves, an included in the Bruntland definition - that the ability of future generations to meet their own needs will not be compromised by the decisions of today. The LGA embraces this aspect with the purpose of local government to promote the well-being of communities “in the present and for the future”. Concern for future parties is expressed twice within the principles of section 14, once under the sustainable development approach and again under subsection (c)(i) where a local authority should take account of “the interests of future as well as current communities”.
The final factor of the sustainable development is a crucial recognition of the importance of the environment. This is a recognition that is evident within the LGA; a situation of environmental well-being is recognised as a desirable state, both now and in the future and the need to enhance the quality of the environment is a required consideration for local authorities. However, the value accorded to the environment, the weight allocated to these requirements, is unclear. It is this issue, the determination of whether a hierarchy exists within integrated issues that will determine if true sustainable development exists in New Zealand.
Although there is a considerable overlap in the factors required to constitute sustainable development there has been division concerning the manner in which it should be implemented. This dispute is helpful as the LGA only provides a loose format for application. Essentially there are two models for implementing sustainability (though variations of each have been developed), weak and strong sustainability. The question dividing these sustainability models is the existence of a hierarchy within the social, economic and environmental considerations and the manner in which a hierarchy influences integration.
(a) Weak Sustainability
The Weak Sustainability model is based upon the presumption that economic considerations are preeminent to other issues in any decision making process. The health of the economy is the priority within this model, with the success of environmental and social sustainability reliant upon it. It is assumed that economic well-being will enable this sustainability by enabling investment in social and environmental programmes otherwise neglected in times of negative growth. Although social and environmental issues remain in this model the retention of either is not guaranteed. Economists in favour of this model theorize that degradation of either consideration can be compensated for by an improvement in any other. Weak sustainability is therefore not concerned with the component parts but rather with the system as a whole allowing, for example, environmental well being to fall as long as societal well being increases to offset the loss. In essence, theories of weak sustainability imply that “either environmental issues should be included in decision-making processes but are ultimately tradable against social and economic considerations, or that all three goals can be pursued simultaneously”.25
It is certainly not preferable for this model to be the basis of application for sustainable development under the LGA. It fails to recognise the very real environmental constraints within which any policies or developments must operate. Regardless of this fault it appears that, at least prior to the LGA, it was this model operating in New Zealand.26 It can be hoped that with the introduction of the sustainable development principle itself that New Zealand has swung to the side of strong sustainability.
(b) Strong Sustainability
Strong Sustainability, sometimes referred to as the ecological model, recognises what the weak form does not, the overarching necessity of environmental well-
being. It is a model reminiscent of weak sustainability; many of the processes of one will be applied under the other, but it is the precedence given to environmental well-being which sets it apart. Strong Sustainability can be visualized in the form of a family of nesting dolls in which economy sits within society which itself is embraced by the environment. This recognises the reality that an economy can only exist within the context of society and that a society will only survive within the capacity of the environment to provide for it. Although a society may change and an economy may grow the capacity of an ecosystem to provide and adapt is forever limited. Integration of ecological considerations into economic and social plans and decisions is therefore a necessity.27 Although the welfare of the environment is a necessary concern and a restraint upon actions under this model it is not seen as independent in reaching sustainability. Each part must be maintained and supported in order to achieve a sustainable whole, none supplementing another as can be done under the weak model. Essentially, strong concepts of sustainability suggest that “while trade-offs between economic, social, and environmental considerations are inevitable, some environmental systems, goods, beliefs, or values are ‘critical’ and should be exempt from any process of trade-off.”28 It is this form of sustainability that the LGA should be facilitating with its sustainable development approach.
The Earth Summit of 1992 determined that the integration suggested by the strong model of sustainability will lead to a fulfillment of basic needs, better protected and managed eco-systems and a safer, more prosperous future. The integration of systems has become a fundamental component of sustainable development with Principle 4 of Agenda 21 confirming that environmental protection is an integral part of the development process and cannot be considered in isolation from it.
It has been suggested that to satisfy the requirements of sustainable development authorities must implement a ‘systems’ approach to solving problems, an approach in which interactions and relationships are key determinatives. Taking this approach, a factor will not be considered in isolation but in relation to all possible considerations; social, cultural, ethical and ecological, the balance of which will determine sustainability. This manner of decision-making is similar to that suggested by the criteria of the LGA. Section 77 of the Act stipulates that an authority must identify all practical options and assess each in light of “the benefits and costs of each option in terms of the present and future social, economic, environmental, and cultural well-being” of the area. The authority is then able to use its discretion in determining how this assessment is to be achieved, with regard to a range of principles including
among others, the diversity of the community, the interests of future communities, prudent stewardship and the sustainable development approach which includes the social, economic and cultural well-being of people and the enhancement of the environment. Although the authority is provided with the freedom to determine these matters of extent and degree they are not free to disregard considerations and all decisions are protected to the proportion of their significance. The authority must therefore be bound to consider a range of concerns and balance them in a manner that will achieve a general well being, a reasoning clearly reminiscent of the ‘systems’ approach.
The determination of whether environmental well-being is placed above that of the economy of society is not stated specifically within the Act, but it is a situation able to be supported by the Act. It will be for the councils and the courts to form a commitment and implement the full promise of sustainability, a promise suggested but never fulfilled by the RMA. The LGA therefore has the potential to herald the entrance of true sustainable development to New Zealand shores. This is an event anticipated by the Commissioner of the Environment who in 2002 recommended that strong sustainability be assumed in New Zealand with the meaning “social and economic development based on long-term prosperity and maximizing natural capital while recognizing ecological limits to certain types of growth.” Nevertheless, the Commissioner acknowledged that a key feature of this approach to sustainable development is the integration of economic, social and environmental interests. Could the LGA be the government’s reply?
2.3 Sustainable Management in the Resource Management Act
New Zealand made a ‘flying start’ towards sustainability with the shaping of the Resource Management Act (RMA) in the 1980s. In place by 1991, the Act was an influential initiative that could have preserved New Zealand’s place as a leading light on sustainable development. Instead, the Act has come under fire from those who feel it does too little and impedes the country’s application of sustainable development. Such a complaint is to be expected of a statute implementing sustainable management, a concept somewhat limited in scope when contrasted with the all-encompassing sustainable development.
The delineation of an Act’s purpose was still a fairly new idea in the 1980s and the RMA was one of the first New Zealand Acts to provide one. It is a critical section to the performance of the Act, Justice Hammond stating that: “the importance of these sections should not be under-estimated, or read down. For, they contain the spirit of the new legislation.”29 Section 5 of the Act provides
the purpose: “to promote the sustainable management of natural and physical resources” thereby enabling communities to provide for their social, economic and cultural well-being while, amongst other things, sustaining the potential of resources to meet the reasonably foreseeable needs of future generations.
Despite initial high hopes for its potential to contribute to sustainable development in New Zealand it was quickly recognised that the purpose had been deliberately defined in a manner so narrow that sustainability would not be attained. While many of the essential elements of a sustainable development system appear within the Act’s purpose the scope of the elements are limited. For example, social, economic and culture factors are considered, yet only within the boundaries of how the environment can provide for them. This is slightly reminiscent of the strong sustainability approach however it fails to reach that strength by refusing to acknowledge the overarching importance and intrinsic value of the environment, it is simply seen as a resource able to be exploited for human survival. The purpose is also limited to promoting sustainable development rather than achieving sustainability, the satisfaction of the purpose is therefore not mandatory – “Section 5(1) describes a goal which may or may not be achieved and even then will be in the eye of the beholder.”30 This management function gives no priority to the actions listed, ‘used, develop and protect’ and is qualified by “in a way, at a rate, which enables people and communities to provide..” This implicitly excludes the welfare of non-human members of our ecosystems.
Controversy exists as to the interpretation of sustainable development, and conversely there has been disagreement as to the meaning of sustainable management. The divergence relates to how the purpose is to be applied, as a bottom line or as a balancing exercise. The heart of this problem lies within s 5(2) with the word “while”. Resources are to be used in a way enabling societal well-being while sustaining and safeguarding the environment. If this crucial word were to be interpreted as a coordinating conjunction, all factors identified would be equal and a balancing approach taken, however, if it were a subordinating conjunction then the ecological requirements are to be given priority thereby creating an environmental bottom line and a possible alliance with strong sustainability.
2.4 The Environmental Bottom Line Approach
The former Minister for the Environment, the Hon Simon Upton, initiated the view that the RMA provides a minimum level of acceptable behaviour. In his Third Reading speech he stated that: 31
The Bill provides us with a framework to establish objectives with a biophysical bottom line that must not be compromised. Provided that those objectives are met, what people get up to is their affair. On the other hand, activities will have to be compatible with hard environmental standards and society will set those standards.
The Courts adopted this view frequently in the early 1990s, finding that if resources would be available to provide for future generations, the environment’s life-supporting capacity was safeguarded and any adverse effects could be avoided or mitigated, then the purpose was fulfilled and the proposed act could proceed.32 The Hon. Simon Upton confirmed and endorsed this approach saying that: “Section 5 is about the sustainable management of resources and (a) (b) and (c) are, if you like, the bottom line of bottom lines. They are non-negotiable.” This is supported by the wording of s5 which includes commanding words, sustain, avoid and safeguard, that require, not a discretion, but a positive action. However, this approach was found not to provide continuous certainty, cases often being rejected for failure to satisfy section 5(2)(c) - avoiding, remedying or mitigating adverse effects on the environment, a finding which is essentially a value judgment on the part of the Court.
Depending upon the height of the bottom line, this approach could mimic the application of strong sustainability where the affect upon the environment is a pre-eminent consideration. Unfortunately under the RMA the bottom line is somewhat closer to the bottom than strong sustainability would require. Section 5’s management function of using, developing and protecting resources does not provide for any hierarchy of concern, each factor is to occur simultaneously and be given equal priority. Although it is recognised that development is an essential component of all theories of sustainability this is strongly suggestive of a weak form in which the community’s well being is paramount. Additionally, s 5(2)(c) provides for mitigation of effects, an implicit authorization for behaviour expected to result in degradation. This was confirmed by the Court stating: “the inclusion of the word contemplates that some adverse effects from development
such as those we have now ascertained may be considered acceptable, no matter what attributes the site may have”.33
2.5 The Overall Judgment Approach
The Overall Judgment Approach was broached in the High Court decision of New Zealand Rail Ltd v Marlborough District Council in which it was determined that s 5 “allow[ed] the application of policy in a general and broad way”.34 This is meant to convey that the subsections of section 5 need not be individually ‘ticked off’ in order to allow consent but its components are subject themselves to the primary purpose of sustainable management. This was supported in the landmark decision of Trio Holdings v Marlborough District Council in which the court performed a balancing test, weighing the management component of s 5 and communities’ social, economic and cultural well-being against the subsections’ adverse effects, finally reaching a decision that would have been unacceptable under the Bottom-line approach. In North Shore City Council v Auckland Regional Council the court set out a clear statement of how the purpose is to be applied: 35
The method of applying s 5 then involves an overall broad judgment of whether a proposal would promote the sustainable management of natural and physical resources. That recognises that the Act has a single purpose...Such a judgment allows for comparison of conflicting considerations and the scale of degree of them, and their relative significance or proportion in the final outcome.
It is this Overall Judgment approach and its balancing method that currently prevails in New Zealand, and with it a weak form of sustainability.36 The approach is in line with the weak model as each component of the issue, economic, cultural, environmental and social is of equal consideration by which the success of one can overwhelm the degradation of another. It is an attractive method for the very reason that it is ecologically flawed; it is a compromise. It strikes a path down the middle of the road without pausing for the limits inevitably imposed upon non-renewable resources and ecosystems that can no longer keep ‘bouncing back’.
It can be seen therefore, that currently New Zealand has chosen to interpret sustainable management as a weak form of sustainability and that it is this form
35 [1996] NZRMA 59, 94.
36 Knight S., supra note 26.
applied when many of the major functions of the RMA are exercised. When considering an application or submissions relating to a resource consent, the matters to be considered by the consent authority, (environmental effects, policies, district plans etc) are always to be subject to Part II and the purpose of the Act, to promote sustainable management.37 National Policy Statements,38 Coastal Policy Statements39 and Regional Policy Statements40 each have the statutory objective of fulfilling the purpose of the Act. Additionally, the purpose of Regional Plans41 and District Plans42 is to assist regional and territorial authorities respectively, to achieve the purpose of the Act. Clearly the meaning of sustainable management is crucial to the effective application of the Act as it pervades the most critical aspects of local government behaviour. As such, conflict arises with the introduction of sustainable development as the new guiding principle under which local government is to operate. Where sustainable management has become aligned, through the action of both councils and courts, with the weak model of sustainability and the overall balancing approach, the LGA requires a greater commitment, with sustainable development and environmental bottom lines. The RMA focuses on avoiding adverse environmental effects, where the “sustainable development approach has much wider objectives in that it aims to deliver the best decisions and outcomes for the economy and the environment, as well as for the social and cultural interests of New Zealanders.”43 Sustainable management is unlike sustainable development:44
so far that sustainable development is much more than the sustainable management of resources referred to in the RMA. Apart from matters of definition, the former involves economic management. It involves foreign policy. It involves a vision of the whole world as interdependent. It involves an acceptance of John Donne’s famous words that ‘no man is an island’.
3. THE INTERFACE BETWEEN
THE LOCAL GOVERNMENT ACT 2002 AND THE RESOURCE MANAGEMENT ACT 1991
Certainly no statute ‘is an island’ either. Many statutes are purposefully designed to affect and integrate with related pieces of legislation. Such integration has occurred between the RMA and the recently enacted Local Government Act though the parliamentary intention is not certain. Questions have been raised questioning the application of requirements under the LGA to the decision- making processes under the RMA and the integration of planning responsibilities under both Acts.
3.1 Decision Making under the LGA
Although the LGA gifts local authorities with an unusually broad and empowering general competence it also imposes limitations in the form of the decision making provisions of Part 6.45 Part 6 is key to the working of the Act, it sets out (in addition to others) obligations relating to decision making, asserts responsibilities in relation to consultation with affected groups and individuals and stipulates the processes and required content of the Long Term Council Community Plan (LTCCP) and also the annual plan.
Part 6 consists of 4 subparts though only subpart 1 is relevant to decision- making procedure. Section 77 provides for a local authority to, within its decision making process:
Additional to these requirements, a local authority must give consideration to the views and preferences of those people likely to be affected by, or to have some interest in the matter.46 Although the section identifies the points within
the decision making process where such consideration is to be taken it is reasonable to say that consideration is to be taken at all significant moments in the process.
Part 6 appears to bind local authorities to a particularly onerous decision making procedure, however, the Act’s overall theme of general competence and capacity continues with s 79 providing the authorities with flexibility within the directed process. Section 79 makes local authorities responsible for making judgments as to how best to achieve compliance with the prior sections with consideration given to the significance of the matters affected by the decision. This allows the authority some flexibility in (amongst other things) how many options and how much information is considered in reaching a decision. The Act also provides guidelines to assist the local body in making these judgments. In doing so the authority must have regard to all relevant matters plus:
(a) the principles set out in s14 (including sustainable development); and
(b) the extent of the local authority’s resources; and
(c) the extent to which the nature of a decision, or the circumstances in which a decision is taken, allow the local authority scope and opportunity to consider a range of options or the views and preferences of other persons.
It would appear that s 79(2)(a) provides a directive by which to measure the significance of the matters affected by the decision whereas (2)(b) provides a reminder of economic realities. Section 79(2)(c) could raise issues but a recent Amendment to this section will be discussed below and more light shed upon its meaning. Additional flexibility is given to local bodies via s 80, which implicitly permits them to make not just decisions inconsistent with any plan or policy but significantly inconsistent decisions with the only proviso that they identify the reasons for the decision.
3.2 The Interface with the RMA
Associate Professor Ken Palmer of the University of Auckland has put forward the theory that the obligations relating to decision making and consultation introduced under the LGA will impact upon the procedures prescribed under the RMA.47 The key section behind this argument is s 76(5) of the LGA, which states that:48
RMB 16.
Where a local authority is authorised or required to make a decision in the exercise of any power, authority, or jurisdiction given to it by this Act or any other enactment..the provisions of subsections (1) to (4) and the provisions, applied by those subsections, unless inconsistent with specific requirements of the Act under which the decision is made, apply in relation to the making of the decision.
This section appears uncomplicated; when a local authority is able to make a decision under another Act the relevant provisions apply unless inconsistent specific requirements in the second Act. The relevant provisions referred to are subsections (1) to (4) of s 76. Subsection (1) applies the sections 77, 78, 80, 81, 82, and subsection (2) employs s 79 and its discretionary judgments. Subsections
(3) and (4) appear to corroborate this theory as they both emphasise the requirement to follow the Act’s procedure. Subsection (3) states that a local authority must ensure that its decision making processes promote compliance with subsection (1) and therefore the decision making criteria, while (4) confirms that “for the avoidance of doubt” subject to subsection (2), sections 77, 78, 80, 81 and 82 apply to every decision made by a local authority.
Although the section appears clear there are elements contained in it that must be confirmed. Firstly, that a decision is required or authorised by the RMA and secondly that the provisions of the LGA are not inconsistent with any specific requirements of the RMA. It is a straightforward conclusion that decisions are required by the RMA, under s 94 the territorial authority may determine whether an application for a resource consent need be notified, s 32 requires considerations to be taken prior to the setting of any objectives, policies or rules and, although the consultation requirements of the First Schedule do not in themselves require a decision to be made, they are subject to the preparation of a policy and add to the s 32 considerations. They could therefore be affected by the corresponding consultation requirements of the LGA. The fundamental issue therefore is whether or not the provisions of the LGA are inconsistent with any specific requirements in the RMA. Although Professor Palmer quickly concluded that “it is difficult to find anything inconsistent within the RMA that would require the decision-making obligations under s 76 to be excluded”49 this is an ideal forum in which to discuss the issue more fully.
The term ‘specific requirement’ is somewhat limiting for an argument that s 76 does not impose the LGA upon the RMA. It requires a positive obligation under
the RMA that is inconsistent with sections 77-82 of the LGA. It is extremely unlikely that the RMA would contain a requirement that a local body specifically not take in to account the relationship of Maori with the land, for example.
Despite the similarities there are differences, the LGA considers community outcomes, the ability of the authority to provide for the future and perhaps most critically reaches for sustainable development where the RMA provides for a the use of sustainable management. Section 77(1)(b)(i) requires the authority to consider “the benefits and costs of each option in terms of the present and future social, economic, environmental, and cultural well being of the district or region”. Embracing the fundamental elements of sustainable development this section clearly calls for the instigation of the sustainable development approach. As was discussed above, sustainable management is a far cry from fulfilling the universal qualities of sustainable development yet there is no inconsistency in their concept. Both involve economic, environmental and social issues and both have the same principle premise of continuing development whilst maintaining the environment. Sustainable management is merely sustainable development in a smaller size, limited in scope but consistent.
Section 93 of the RMA requires that a consent authority notify all persons who are likely to be directly affected by an application for resource consent. Notification of proposed policy statements and plans is also required. Section 5 of the First Schedule demands that a local authority notify any person who appears on the area’s valuation roll and is likely to be directly affected and if the designation of a heritage order is concerned, to any owners or occupiers who are likely to be affected. These specific requirements to notify are not inconsistent with the relevant provisions of the LGA. Section 78 of the LGA requires
consideration be given to the views and preferences of persons likely to be affected by or to have an interest in the relevant matter. This is a much broader requirement than simple notification but implicitly includes the act. However, notification under the RMA need not take place where the consent authority is satisfied that the adverse effect on the environment from the activity will be minor.50 Such discretion is not unknown under the LGA. Section 78, requiring community views to be taken, is tempered by the discretion under s 79 as to fulfilling compliance in proportion to the significance of the matter. In determining proportion local authorities must turn their minds to environmental issues similar to the RMA consideration; the need to maintain and enhance the quality of the environment while ensuring the efficient and effective use of resources.51
This section obligates local authorities to consult various parties when preparing a proposed policy statement or plan. Parties include relevant Ministers, local authorities and tangata whenua who may be affected. Lastly, discretion allows the local authority to consult “anyone else”.52 In comparison, the LGA has a two-tiered consultation system. A special consultative procedure exists for the adoption of a long-term council community plan, the adoption, review or amendment of bylaws or at the preference of the local authority. Consultation can also occur at the discretion of the authority but must be carried out in accordance with six general principles of consultation.53 These principles include; notifying interested parties, encouraging them to present their views, providing them with a reasonable opportunity to do so and giving all views due consideration with an open mind. Local Authorities have also been provided with discretion as to how these principles are implemented,54 but this must be undertaken with a regard to section 78 and its requirement to give consideration to the views and references of those people who will be affected by the matter.Comparison of these sections results in a similar situation as those discussed above; although the LGA supplies a sturdier consultation procedure, it is not inconsistent with that of the RMA. The RMA provides a specific requirement that Ministers be consulted but the LGA provides for anyone affected or interested in the matter to be consulted, this would implicitly include any Minister of a relevant portfolio. Additionally the LGA provides for processes for consulting
50 RMA, s 94(2) and s 94(3).
51 LGA, s 14 (1)(h) and s 14(1)(g).
54 Ibid, s 82(3) and s 82(4).
with Maori and encouragement of their participation.55 Section 82(5) mimics s 76(5) and provides for the very situation where consultation is required by another enactment. In such a situation if the principles of consultation are inconsistent with specific requirements (for example consulting with the Minster for the Environment) the LGA procedure is not to be observed. It would appear that although the consultation principles “significantly embellish or complement”56 the RMA procedure, as has been seen in the other areas discussed above, there appears no inconsistency with which to exclude them.
So it would appear that there are no specific requirements under the Resource Management Act which can be found to be inconsistent with the decision making procedure contained in Part 6 of the of Local Government Act. However, section 79 of the LGA contains an element which could be seen as an impediment, though really is more likely to be merely a limit upon the application in the same manner as the exclusionary “inconsistent with specific requirements”.
Section 79 contains the discretion with which local authorities are to evaluate the necessary compliance with sections 77 and 78, those requiring various options to be considered within the decision making process and consideration being given to the views and preferences of interested parties. The discretion enables authorities to make judgments concerning the most appropriate level of compliance with those sections, in particular, how many options and how much information need be considered and the degree to which benefits and costs are to be quantified. In making these judgments the authority must have regard to all relevant matters, including, the principles of section 14 and;57
the extent to which the nature of the decision, or the circumstances in which a decision is taken, allow the local authority scope and opportunity to consider a range of options or views and preferences of other persons.
At first glance this subparagraph gives the appearance of impeding the application of the LGA to other enactments, but this is not so. This phrase does not widen the requirement of s 76(5) and s 82(5) - that the secondary statute not contain specific requirements inconsistent with the primary Act. Section 79(2)(c) simply requires a local authority to, when identifying and considering other options and giving consideration to the possibly wide number of people who may be interested, have regard to whether the RMA contains a requirement that limits the range of options or preferences of other persons that may be considered. In
55 Ibid, s 82(2).
56 K. Palmer, supra note 47, 18. 57 LGA, s 79(2)(c).
even simpler terms, the authority must question whether sections 77 and 78 are inconsistent with specific requirements in the RMA. The recent addition of s 79(3) confirms this. Section 79(3) states that:
This amendment was made for “the avoidance of doubt”58 but does not change the original interpretation. It confirms that a local authority must have regard to whether the secondary Act has specific prescriptions that must restrict the authority’s actions. This is consistent with the limit upon the newly awarded power of general competence; local authorities may do anything to achieve their purpose provided that it complies with the law, including specific provisions of other enactments. As has already been seen, there are no inconsistencies, the section therefore adds nothing, though it could suggest that a minor inconsistency would not strictly block the application of the LGA, but may only limit the manner in which compliance with ss 77 and 78 is taken. This could be supported by the explanatory note for the Local Government Act 2002 Amendment Act 2004 which states that the amendment to s 79 clarifies that: “a local authority may consider the extent to which the requirements for such decision-making are prescribed under any other enactment.”59 This again confirms the original proposition that the requirements of the LGA will overlay those of the RMA, as long as they remain consistent.
3.3 The Effect of the LGA Overlay
As has been seen expansively above, there are no substantive differences in the provisions of the two Acts; the LGA is simply wider and more comprehensive than the older RMA. This is a reflection of the ‘new management’ style of local government, limiting principles and obligations being sketched around a power of general competence, a glass ceiling held above an extensive flexibility. The imposition will, however, require local authorities to follow the more comprehensive requirements when considering plans and policy, notification, carrying out consultation, involving Maori in decision making and making inconsistent decisions.
58 Ibid, s 79(4).
59 Local Government Law Reform Bill (No. 3) 2004, Explanatory note.
Section 77(1) is extremely similar to s 32 of the RMA, and so little more will be expected of local authorities when considering policy and plan matters and the necessity of notification of a resource consent application. The two major differences are the inclusion of a required consideration of Maori culture and traditions in the making of a significant decision relating to land or water and secondly the requirement to use the sustainable development approach to decision-making. Theoretically, this latter change should require local authorities to dramatically alter their methods and views, as “sustainable development requires major structural reforms in the areas of policy design, administration, business management, production and consumption, education and awareness.”60 Realistically, it is uncertain whether the sustainable development approach will effect business-as-usual in the application of the RMA or as yet in the application of the LGA. A true adherence to the principle of sustainable development is likely to require a cultural change and a swift environmental education within the country’s local governments rather than a simple statutory inclusion. As Justice Salmon has said: “it is not really possible to pass a law ensuring sustainable development, just as it is not possible to pass a law ensuring justice. Both are ethical concepts.”61
Section 78 of the LGA which requires that the views and preferences of interested persons is unlikely to add to the current routine of local authorities in relation to the preparation of policies and plans, however, it could be a heavier burden in relation to the option to notify the public of resource consent applications. Currently, s 94 of the RMA does not require notification when the consent authority is satisfied that approval has been received from those adversely affected. It has been found that many councils rely upon the opinion of the developer to determine that no one will be adversely affected, thereby making notification unnecessary.62 This could not continue as s 78 confers upon local authorities the obligation to approach directly persons likely to be affected or have an interest in the matter, and consider their views. Although the obligation could add to the cost and action required to attain compliance, greater equity could be achieved between the public and potential developers as well as fulfilling the ideal of community empowerment and participation espoused in both Acts.
Section 80 of the LGA provides a system by which local authorities can justify the making of a decision that is significantly inconsistent with any policy, plan or Act. The authority must identify the inconsistency, explain their reasons for making it, and outline any intention they have for making amendments that will accommodate the decision. The RMA itself contains various similar requirements, for example, s 55(2) requires reasons to be given for a decision in relation to a changed national policy and ss 9 and 10 of the First Schedule require local authorities to provide reasons for any decision concerning a proposed policy or plan. Therefore, the implementation of the LGA requirement will not be a drastic change though it will emphasise the specific duty to identify and explain inconsistent behaviour. This duty must be given “full weight” as it is not mitigated as the other sections are by the s79 discretion.63
A local authority must provide for Maori to contribute to the decision making process under s 81 of the LGA. This is not a requirement to consider the views of Maori in a manner superior to the views of the wider public but to encourage and ease the participation of Maori. It has been suggested that Maori contribution to decision making could require local bodies to involve them in the decision making process itself through membership of committees or performing functions64 or to perform mandatory consultation. However, in determining how this responsibility is to be exercised the local authority is to have regard to their role under s 11, which in turn gives effect to the purpose of local government: “to enable democratic local decision making and action by, and on behalf of, communities.” It seems unlikely that a purpose to promote democracy would also promote the elevation of one group within the decision making process of local government. It appears more likely, having regard to s 81(1)(c) which requires for information to be provided to Maori, that the required processes would be in regards to submissions and consultation at the statutory discretion of the local authority or Maori language information.65 This seems especially so in light of the other provisions for including the public within local government procedure, section 78 incorporating community views and s 82’s discretion to perform consultation, a discretion once taken that only requires consultation with those parties affected by or with an interest in the matter.Once consultation is chosen, s 82(2) requires that the local authority have in place the necessary processes for involving Maori. This specific requirement
suggests that the earlier section does nothing more than obligate the authority to make the processes, open to the public, easy for Maori, and to encourage Maori to utilise them. The RMA provides various opportunities for this participation; public consultation during the preparation of policy statements and plans66 and the right to make submissions concerning any notified resource consent application67or the need for a heritage order.68
The consultation principles of s 82 are both more expansive and more extensive than those currently being operated under the RMA. The RMA is largely discretionary stating that the local authority may “consult anyone else” with no guidance given as to implementation or deliberation. Section 82 is also discretionary in its application and the appropriate manner of implementation, but much greater guidance is given: interested parties must be identified, access to relevant information must be provided, encouragement must be given for those parties to participate, appropriate opportunities for then to present their views must be arranged and finally local authorities are instructed to give consideration to all viewpoints with an open mind. This addition to the decision making process imposes a arduous and time consuming burden upon councils and authorities, a burden largely in conflict with the option of councils to implement consistent policy.69The result of Section 76(5) of the LGA is to bring the RMA under its jurisdiction and impose upon authorities acting inside its sphere the obligations and responsibilities held within Part 6. Some of these obligations will little alter the current practice of local authorities while others will require greater efforts, particularly in identifying and addressing the views of community members likely to be affected or interested in changes being contemplated. How the requirement to consider the goal of sustainable development is implemented in primacy over the established sustainable management will be fascinating to observe though currently difficult to predict. A thorough treatment of the sustainable development approach will require commitment and understanding from local authorities. Although the same authorities are required to utilise this approach when functioning under their LGA duties it is unclear how effectively this is occurring even in this sphere. Given time, case law and the development of more long-term community plans it will become clearer how councils intend to apply their new purpose and how able they are to do so.
3.4 A Planning Interface?
Decision-making will not be the sole area affected by the new Local Government legislation. Impact will also be had upon planning responsibilities under both Acts with the RMA imposing, via sustainability, planning obligations upon local authorities under the LGA. It is expected that Biodiversity, a global issue, held as prominent under the RMA, will be required as an independent consideration in the LGA. An additional issue has been raised for Auckland’s regional authorities and the integration of the Regional Growth Strategy, a sustainable development document.
The Resource Management Amendment Act 2003 introduced the specific obligation for local authorities to enhance ecosystems and maintain indigenous biodiversity. The Act’s definition of biodiversity was carried over from the United Nations Convention on Biological Diversity which states that: “biological diversity means the variability among living organisms, and the ecological complexes of which they are a part, including diversity within species, between species, and of ecosystems.”The Act provides that it is a function of regional councils to control the use of land70 and establish, implement and review objectives, policies and methods,71 for the purpose of maintaining indigenous biodiversity. Additionally, it is a function of territorial authorities to control the effects of the use of land on the maintenance of indigenous biological diversity.72 These new provisions are complementary to the principles already recognised in the RMA 1991 which included the importance of; the “life supporting value of ecosystems,”73 “areas of significant indigenous vegetation and significant habitats of indigenous fauna”74 and the “intrinsic values of ecosystems”.75 The sections of the 2003 Act have clarified that managing biodiversity is an explicit function of both regional councils and territorial authorities. This is further confirmed by the purpose of the LGA: to promote sustainable development.
Biodiversity is, without a doubt, a critical measure of sustainable development. Within every interpretation of the principle the continuance of species and the preservation of ecosystems is a central truth, an environmental
bottom line. Where the RMA 2003 requires councils to “control” the use of land this could be interpreted as various forms of action – imposition and enforcement of rules, or, through other means specified in plans prepared under the RMA but given in detail and mandated through the Long Term Council Community Plan (LTCCP) under the LGA. It is the latter that will more thoroughly provide for a strategic plan providing for the long term whilst involving cross-organisational involvement. Under s 93 of the LGA every local authority must have a LTCCP, a 10-year plan stating community outcomes and describing the manner in which the council will achieve them. The Act provides a skeleton framework prescribing the key steps in the strategic planning of the LTCCP. The framework provides for the identification of community outcomes and the inclusion of particular provisions.76 Beyond this councils must determine content for themselves.
The involvement of bio-diversity concerns in the LTCCP would be best achieved through designation as a community outcome. Although community outcomes are intended to be the desires of the community it is likely that if provided with the relevant information a community will recognise biodiversity as a concern. However, it is also possible for the council itself to include bio- diversity as local authority outcome even if it is not a specific community outcome. This is due to the requirement that local authorities include in their LTCCP a description of how they will contribute to the furthering of community outcomes. Practically, this means identifying the local authorities own outcomes and/or the plan of action that is required.77 In order to provide for biodiversity in this manner it could be as simple as a local authority goal of, the maintenance of biodiversity. Incorporating biodiversity in such a way indicates a council’s recognition for their mandatory function of maintaining diversity whilst demonstrating integration between policy under a local authority plan and policy within resource management plans, many of which address biodiversity as a significant issue. Further integration could be had through the inclusion of biological diversity as a function and responsibility of local authority within local governance statements, the provision for maintenance through specific departmental work programmes and links with district and regional plans instigated under the RMA.
Providing for the maintenance of biological diversity is a mandatory function of local government, a function that also furthers their purpose of promoting sustainable development. Biodiversity maintains well-being in all the relevant forms; economic in the form of ecosystem services (pollination, soil stability,
water quality) social in the form of national identity and educational benefits and also cultural benefits in the form of a continuing recognition of Maori traditions, knowledge and customary uses.78 It is therefore reflective of the integration of factors required of a sustainable development approach while also illustrating the potential planning linkages between functions under the RMA and the LGA.
As seen above with the example of biological diversity, concerns and responsibilities under the LGA often overlap with those of the RMA. This is not surprising considering both Acts have at their heart the concept of sustainability and each has a goal of social, economic and cultural well-being. Additionally, local government under each Act is given the task of performing a planning function; regional policy statements (RPS), regional and district plans under the RMA and the Long-Term Council Community Plans under the LGA. Connecting the Regional Policy Statement and the LTCCP are many similarities; similarities that have made some suggest that the two should be merged.79The similarities between the two strategies are even more pronounced now that it is clear that the LGA decision-making procedure applies to decisions made under the RMA, however, the similarities already existed prior to this. The similarities include the obvious link of sustainability, the extensive consultation required in the preparation of both, the ten-year period of each and the representation that each endorses integrated management. Additionally, the benefit/costs considerations of the LGA and the similar benefits and alternatives system of the RMA were notably similar, as are the ‘objectives’ of the Regional Policy Statement and the ‘outcomes’ of the LTCCP. In light of the merging of procedure under the LGA, similarities have become equivalents and the suggestion of merging the documents less unfathomable. It has been suggested that such a merge would have the benefit of removing the uncertainty of how a RPA (and regional and district plans) should deal with social, economic and cultural issues, a difficulty in an Act with a principal focus on natural and physical resources.80 It would also make local authorities more accountable for its resource management, thereby better fulfilling their purpose. If this merge is to happen it will need to be through an Amendment to the Acts but if it ever were to occur the present could not be more opportune, many local authorities will soon be
attempting to review their current Regional Policy Statements whilst most do not yet have a Long-Term Council Community Plan.
An additional overlap has recently been evidenced by the Local Government (Auckland) Amendment Act 2004. The LGA of 1974 required a Regional Growth Strategy that was not inconsistent with any regional policy statement proposed or in force under the RMA.81 The Auckland Amendment has reversed this by requiring Auckland Councils to prepare changes to their planning documents in order to align them with the Regional Growth Strategy and also the Regional Land Transport Strategy.82 Giving effect to these strategies within the region’s planning documents should have the effect of better integrating land-use and transport development and ensuring that projects consistent with their goals find approval under the RMA but as the Growth Strategy is, with a core element of sustainability, essentially a sustainable development document it appears that local government will, with or without the RMA, become a channel through which sustainable development will enter New Zealand practice.
4. CONCLUSION
The Local Government Act of 2002 holds within its pages the potential for New Zealand to progress towards the realisation of a sustainable society supported by a vigorous natural environment. In taking these steps New Zealand will be joining the running tide of states committed to the achievement of the sustainability principle and eager for the all-embracing well-being that will ensue. It is a bold step, beyond the reaches of the prior legislation, shadowing the management principle of earlier years, but it is a goal that will only be reached with the absolute conviction and integration of government and community actions. The Local Government Act, if applied with purpose and the commitment of both courts and councils, has the promise of making sustainability more than a principle, but a reality visited with every action of a local authority, from strategic planning to decision-making and community consultation. True sustainability will only be achieved if applied with purpose, a state as yet unseen in New Zealand though silhouetted within the Government’s plentiful strategies and working papers. The Local Government Act can, with hope, be seen as the completion of the ‘flying start’ New Zealand enjoyed with the enactment of the Resource Management Act over a decade ago, for “the gross problems that face such a large proportion of the world’s population cannot be overcome unless sustainable development becomes a reality rather than a comforting platitude.”83
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2004/9.html