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Klein, Dr Ulrich --- "Assessment of New Zealand's environmental planning model" [2005] NZJlEnvLaw 9; (2004) 9 NZJEL 287

Last Updated: 13 February 2023

287

Assessment of New Zealand’s Environmental Planning model

Dr Ulrich Klein*

New Zealand is seen as a leading country in environmental planning. Until recently, most studies have hesitated to draw conclusions on whether this reputation is justified. This article presents the key messages of a juridical assessment of New Zealand’s Environmental Planning Model which has been published in Germany.¹ It argues that although the Resource Management Act 1991 (RMA 1991) provides new oppor- tunities for green planning, many legal and practical impediments still exist.

1. Advantages of New Zealand’s Environmental Planning

An analysis of legal developments and planning practice enables a definitive assessment of some of the advantages and disadvantages of New Zealand’s environmental planning. The standard for this assessment is the ‘effectiveness of the law’² in providing a high level of protection for the environment. In order to be able to realistically assess the effectiveness of legal norms, extra-legal explanatory factors must be incorporated into the assessment, in particular the historical, political, social and economic characteristics of New Zealand.³

*Dr iur Muenster, LLM/Envir (Hons) Auckland, Adviser Legal & Environmental Affairs, German Electricity Association, Berlin (email: kleinulrich@hotmail.com). The author is grateful to Kelly Wilton and Dr Kenneth Palmer for helpful comments on earlier drafts of this paper.

1. Klein, U, Integrierte Umweltplanung: Das Neuseeländische Modell (Duncker & Humblot, Berlin 2004).
2. For a definition of the term “effectiveness” see Ryffel, H, “Bedingende Faktoren der Effektivitaet des Rechts”, in: Rehbinder, M and Schelsky, H (eds) Zur Effektivitaet des Rechts (1972) p 234.
3. For fundamental questions of comparative environmental law see Kloepfer, M, Umweltrecht (2nd ed, 1998), ch 9 E; Beaucamp, G,“Umweltrechtsvergleichung” (2001) Umwelt- und Planungsrecht 134.

Only against this background may statements be made as to if and under which conditions the legal provisions are effective.

1.1 Comprehensive Focus of Planning

New Zealand’s environmental planning has a remarkably comprehensive scope insofar as basically all natural and physical resources are subject to planning. Even though some resources are excluded from the field of application of the RMA 1991, the law enables planning which is ecologically comprehensive and which integrates environmental media.⁴

The main instruments of this comprehensive planning are national envir- onmental standards (NES) and regional policy statements. With regards to the regional policy statements, the planning authorities conduct an analysis of the connections and interactions between environmental media, elements and problems in the region and set integrated planning objectives.⁵ In practice, regional policy statements were enacted so as to give extensive coverage, and integrated planning was carried out. The regional policy statements are quite rightly described as a “solid framework for an integrated planning of environmental media”.⁶ Their main advantage is their precursory stock-taking of the environmental situation and problems in the region as well as the deter- mination of urgent areas of action of regional environmental protection, including environmental target-setting for the regional and district plans. The “combined plans” of the unifying authorities and the integrated or ecosystem centred regional plans – for example, for river systems, geothermal regions, wetlands and lakes – also contribute to comprehensive planning.⁷ Other regional and district plans reveal in their design an integrated networking of plans – for instance, by use of cross-references, matrices and synopses.

In New Zealand, where water management is traditionally of great practical importance, an integrated planning focus is viewed as particularly advanta- geous.⁸ The management of bodies of water such as lakes, river courses, wetlands and coastal strips may thus take place according to an “eco-systematic planning foundation”, which is generally required for effective environmental protection.⁹ The Government is, at present, conducting a process of consultation in order to formulate NES for human drinking water standards.¹⁰

4. In detail, Klein, supra note 1, chs 8 I and 11 IV 1. 5 RMA 1991 s 62.
   6. Sumits, A P and Morrison, J I, Creating a Framework for Sustainability in California: Lessons Learned from New Zealand Experience (2001) 35.
   7. Klein, supra note 1, ch 11 IV 1 a).
   8. Ericksen, N J, “New Zealand Water Planning and Management” in Mitchell, B (ed),

Integrated Water Management (1990) 50.

9. Klein, supra note 1, ch 3 II 2 c).
10. URL: http://www.mfe.govt.nz (20 December 2005).

The first NES concerning air quality came into affect on 1st September 2005. Regional and unitary authorities must monitor air quality, report when the air pollutants in the region exceed the specified limits, and plan for improvements.¹¹ Given the recent introduction of this scheme it is difficult to assess the efficacy of such to date; however, arguably, air quality management, in contrast to water management, is of much less practical importance in New Zealand, largely owing to its sparse population and coastal situation. The inclusion of the medium air in environmental planning is nevertheless expedient, at least in the area of resource consent. Potentially, nationwide regulations are a blunt tool in this regard, as air quality differs markedly from region to region. While in Auckland, due to the size of the city, and in Christchurch, due to its basin location, strict requirements for consent are necessary, they are not essential for the sparsely populated Far North region, or Wellington, which is situated on a promontory. The extant regional differences in air quality are taken much more suitably into account by decentralised environmental planning than by national laws and standards.

Furthermore, all districts are obliged to undertake territorial planning; namely, to draw up district plans with extensive coverage.¹² In contrast to the situation in Germany, all of the “outdoors” in New Zealand is managed. Noteworthy also, is that project and construction management is subsumed by environmental resource management; that is to say, they are part of environ- mental management. Environmental authorities are responsible for project and construction management, for building consents, and for other resource consents where legal or planning regulations necessitate this.¹³ In order to build a house, for instance, an environmental consent for the use of various resources is required and not simply a building permit.

The law of subdivision of land is also a part of the resource management law, and with regard to this the scope of planning is also enlarged. The assump- tion that – correctly – underlies this is that a piece of land, if it is divided, will sooner or later be put to use and this use causes environmental problems. Subdivision is thus a preliminary stage for the utilisation of land; it follows that the environmental protection of an area that is so divided becomes more difficult the more owners there are who have a stake in the protective measures and the more conflicting interests there are with regard to utilisation. Hence, in New Zealand, all subdivision of land is prohibited by law unless the subdivision is expressly allowed by a regulation in a district plan, or a resource consent allowing subdivision has been granted.¹⁴ In resource consent application processes the environmental effects of a subdivision of land are to be examined

11. Ibid.

12 RMA 1991, s 73.

13 RMA 1991, s 31.

14 RMA 1991, s 11.

in an assessment of effects on the environment undertaken by the applicant. The subdivision of certain environmental areas, which are worthy of protection, is not to take place. These are to be considered as matters of national importance in the course of planning.¹⁵ In addition to this, the judiciary has established case groups in which subdivision is, for conservation reasons, generally not permissible.¹⁶

1.2 ecological Planning Perspective

Environmental management in New Zealand has an advantageous ecological planning perspective, which has manifested itself legally in the purpose and principles of the legislation and recognised matters of importance.¹⁷ The environmental authorities are legally obliged to undertake ecological planning. The aspects that must be considered are the preservation of the life-sustaining capacity of air, water, soil and ecosystems, and the prevention, mitigation and reduction of the negative effects of activities upon the environment.¹⁸ It is noteworthy that this sets ecological limits for resource utilisation and a high standard of conservation of the environment is striven for.¹⁹ The ecological planning perspective is made concrete by the declaration of matters of national importance and other legally recognised interests.²⁰ Accordingly, when plan- ning takes place not only are individual natural monuments to be taken into consideration as recognised interests, but also the conservation and improve- ment of environmental quality and the intrinsic value of ecosystems. The Maori perspective is also notable in planning.²¹ This brings with it a holistic world- view and ecological planning perspective that is characteristic of indigenous peoples. The law aims for an eco-systematic approach and, in a departure from the earlier Town and Country Planning Act 1977 (TCPA 1977), it also aims at a transition to eco-centric environmental planning.

In practice the ecological planning basis finds expression in the plans.²² The regulations and objectives set forth in the plans, and their taking-stock of resources, reflect an eco-centric, ecosystem-oriented foundation. New Zealand’s planners and jurists recognise the objectives of sustainable management as, at a minimum, ecological sustainability. Planning is viewed primarily as ecologically

15 RMA 1991, s 6(a)(b).

16. Burnett v Tasman District Council [1995] NZRMA 280; Robinson v Ashburton District Council (Planning Tribunal W 92/94, 23.09.1994) 22; Pickmere v Franklin District Council (Planning Tribunal A46/93, 29.04.1993).
17. See part II of the Act. 18 RMA 1991, s 5(2)(b)(c). 19 RMA 1991, s 5(2).

20 RMA 1991ss 6–8.

21 RMA 1991, ss 5(2), 6(e), 7(a), 8.

22 See Klein, supra note 1, ch 11 IV 1.

oriented and does not consider the question of whether, in the case of a conflict, environmental conservation should be generally given precedence.²³ In New Zealand it is not questioned that planning under the RMA 1991 should serve the protection of the environment for its own sake; this may be attributed to the Anglo-Saxon, and even more so, to the Maori legal influence.

1.3 Long-term Planning and Preservation for Posterity

New Zealand’s environmental planning is in the interests of present and future generations. It is planning for the long term. The time horizon becomes clear in the law in three ways. Firstly, all negative impacts upon the environment are to be avoided, remedied or mitigated (general provision).²⁴ Secondly, the life-sustaining capacity of air, water, soil and ecosystems are to be preserved (life-sustaining provision).²⁵ Thirdly, the utilisation potential of natural and physical resources is to be maintained in order to enable future generations to satisfy their reasonably foreseeable needs (resource provision).²⁶ In this regard the planning perspective is remarkably forward thinking and oriented toward preservation of the environment for posterity. The future-oriented planning does, however, have certain limitations; for instance, in respect of the provisions for one particular resource, as minerals are expressly excluded from the field of applications, also, only the reasonably foreseeable needs of future generations are to be considered.²⁷

In planning practice a serious endeavour to implement the future-oriented legal standards may be observed.²⁸ The legal norms are, if not altogether effective, effective insofar as the long-term perspective in the statements and plans is expressly recognised and set forth in detail. Frequently the provision principle and sustainability requirements are formulated and put in concrete terms for the relevant focus of planning. In some cases these plans go beyond the wording in the statute. Just how the temporal perspective has manifested itself in the more specific planning regulations – for instance, in the objectives, policies, methods and regulations of the plans – may not be gauged without difficulty. Although long-term risks and cumulative effects are alluded to in the planning documents, the planning standards remain somewhat general and abstract in their wording. In this regard, weaknesses in the implementation of legal standards for planning for the future still exist. It is nevertheless unmistakable that planning standards are time and again justified by the necessity of protecting the environment for

23 Klein, supra note 1, ch 8 II 6. 24 RMA 1991, s 5(2)(c).

25 RMA 1991, s 5(2)(b).

26 RMA 1991, s 5(2)(a).

27. RMA 1991, ibid.
28. Klein, supra note 1, ch 11 IV 2 a) cc), b).

posterity. In this respect the temporal planning perspective has already been broadened in comparison to planning under the TCPA 1977.

1.4 Rational environmental Planning and Outcome guidance

New Zealand’s environmental planning may rightly be called rational planning, in the sense that it is an outcome-oriented regulation,²⁹ and, in this regard, it may be judged positively.³⁰ A strict justification of the binding plan regulations occurs in the course of an assessment of environmental plans.³¹ Environmental plan assessment is to ensure that the planning only serves to avoid negative impacts upon the environment. Routine State control is, by contrast, out of the question. The density of provisions in the plan documents tends in practice to be small.³² Contrary to the opinion of some opposed to regulation, the environmental plans in New Zealand are anything but too regulative; rather, they provide a minimum of regulation. The justification of the regulations contained in the plans is secured in that the plans are subject to the scrutiny of the Environment Court, and entire plans, or individual regulations contained within them, are repealed where they are found to be unjustified.³³

This new effects-based planning foundation serves to avoid unnecessary intervention in economic and social developments. The setting of concrete environmental goals and outcomes is essential. The new achievement-oriented basis leads in practice to a stricter, more rational regulation. A change from activity-based planning to effects-based planning may be observed.³⁴ The severity of the detailed, activity-based planning under the TCPA 1977 is now barely perceptible. The number of activity-based planning zones was heavily reduced and their existence is now established on a more effects-based foundation. Where activity-based plans are issued without regard to effects, the Environment Court regularly overturns them.

The strategic orientation of planning allows more rational problem selection, goal setting, priority setting, and a step-by-step realisation of individual goals.³⁵ In practice a distinction is made between essential and secondary problem areas as well as between urgent and less pressing planning goals, albeit with

29. Klein, supra note 1, ch 8 III 3, 4.
30. Klein, supra note 1, chs 8 III 4; 11 IV 3 a) bb), cc), b). 31 RMA 1991, s 32.
32. Klein, supra note 1, ch 11 IV 3 a) bb), b).
33. Re: Boon and Marlborough District Council, W 32/98, 12.05.1998 (unpublished), Nugent Consultations Ltd v Auckland City Council [1996] NZRMA 494; Countdown Properties Northlands Ltd v Dunedin City Council [1994] NZRMA 171; K B Furniture Ltd and others v Tauranga District Council [1993] NZRMA 291; Application by Christchurch City Council [1995] NZRMA 129.
34. Klein, supra note 1, ch 11 IV 3 a) cc), b).
35. Klein, supra note 1, ch 8 III 1, 2 and ch 11 IV 3 a) aa), b).

deficiencies. This strategic setting of planning priorities is of great practical advantage in a sparsely populated country such as New Zealand which has very limited financial means at its disposal, but a large state territory to manage.

1.5 Jurisdictions and the administrative system

The New Zealand environmental planning model exhibits some special institutional characteristics that have proven successful in practice. Worthy of mention are the number of environmental planning authorities, the ecologically oriented allocation of the authorities’ areas of responsibility, and the strong position of the regional planning authorities.

In 1989 the number of local and regional environmental planning authorities was strongly reduced.³⁶ Instead of a multitude of medial and sectoral specialist planning authorities there are now environmental authorities with substantially wide jurisdictions. At the national level, the Ministry for the Environment and Department of Conservation carry out planning duties, at the regional level the regional authorities, and on a local level the district authorities. The system of authorities is quite simple and clear, which facilitates co-ordination of the authorities’ efforts. As a result, fewer authorities participate in planning, with the consequence that co-ordination of planning is less costly. The clarity of the authority structure has a positive effect on the practical possibility of public participation. It is easy for citizens to determine which authority is respon- sible for a certain plan. As there are no organisationally separated specialist environmental authorities, all that is needed in order to find the appropriate authority is to establish whether the objection to be raised concerns a local, regional, or national environmental planning process.

The simplicity of the authority framework makes decision-making pro- cesses in planning transparent, enabling feedback processes to occur. It is thus possible for planners to see the effectiveness of their planning, provided that commensurate monitoring takes place. The law expressly stipulates that such monitoring should occur.³⁷ Moreover, unlike the case of authority frameworks with complex decision-making structures, the work of the authorities may be effectively supervised, as responsibilities remain clearly discernable. This supervision takes place either automatically by means of the administration

– for instance, by the Minister for the Environment in the exercise of his or her

36. Palmer, K A, Local Government Law in New Zealand (2nd ed, 1993) 7–8.
37. RMA 1991, s 35; see also Hutchings, J L, “Monitoring Responsibilities under the Resource Management Act” (1995) Planning Quarterly 5; Ministry for the Environment, The Monitoring Guide (1996) and District Plan Monitoring (2000).

powers³⁸ – or comes externally from interested members of the public.³⁹ After all, a reduced number of planning authorities is also necessary for reasons of affordability in New Zealand, as a complex system of environmental authorities cannot be financed.

The new ecologically oriented allocation of authorities’ responsibilities has proven particularly advantageous.⁴⁰ Instead of political-historical boundaries, natural boundaries, such as watersheds, now define the scope of responsibility of the regions. Thus, cross-regional environmental problems occur less frequently, bodies of water and their ecosystems may be planned as a whole, and inter- medial shifting of problems can be taken into consideration. The restructuring of the system of environmental authorities was sensible, as an opening of the old authority structures to accompany the introduction of the new environmental planning model was necessary in order to break down opposition stemming from the desire to retain former authority and powers. It was feared that in the alternative, old planning traditions would essentially endure. In order to prevent this, the newly created regional environmental planning authorities were granted a particularly strong position in the environmental planning system.⁴¹ New ways of thinking were to be made possible by reorganisation. The strengthening of planning, especially at regional level, was advisable in New Zealand, as regional differences exist with respect to the environmental situation and conservation. On the other hand, the fact that the districts alone would be overburdened with planning, especially financially and in terms of personnel, stood in the way of a complete decentralisation of planning. For this reason strong regions were established and in some cases district and regional authorities were combined into unitary authorities. The creation of these new unitary authorities proved, moreover, to be feasible for integrated environmental management, as combined environmental plans could then also be made.⁴²

1.6 Co-ordination and Procedure

In spite of legitimate criticism in regards to practice,⁴³ the co-ordination of environmental planning in New Zealand exhibits some specific characteristics

38 RMA 1991, s 24 & 25.

39. RMA 1991, Schedule 1, clauses 3–15.
40. Klein, supra note 1, ch 11 V.
41. RMA 1991, ss 67–70; see also Randerson, T, “Resource Management Act 1991” in Williams, D A R (ed), Environmental and Resource Management Law in New Zealand (2nd ed, 1997) para 3.81; Palmer, K A, “Resource Management” in Cook, R (ed), The Laws of New Zealand (1995) para 60.
42. Klein, supra note 1, ch 7 V 1 a), b).
43. Sumits & Morrison, supra note 6, p 25; Ericksen, N J et al, Resource Management, Plan Quality and Governance (2001) 9; Bush-King, D, “Integrated Resource Management”, Planning Quarterly (1997) 13.

that are to be assessed positively. The legal regulations govern co-ordinated planning processes, though few have proven advantageous. That the planning authorities are bound by law to undertake integrated management deserves mention,⁴⁴ as do the allocation of exclusive – but not selective – areas of respon- sibility, the rule of vertical planning consistency, the prohibition of conflicting planning, and the requirement of horizontal planning consideration and consultation.

The legal regulations governing vertical and horizontal co-ordination⁴⁵ make obligatory and enforce a minimum of co-ordination in planning. However, they leave the more precise organisation of co-ordination up to the environmental planning authorities, who have the freedom to choose the most locally suited co-ordination model. Here a key function falls to the regional authorities; namely, to set goals, strategies and methods for the integrated management of natural and physical resources in their regional policy statements.⁴⁶ However, the regional authorities do not have the authority to issue directives vis-à-vis the local planning authorities. The relationship of the planning authorities to one another is, because of the co-operative planning base, not the classic superior-subordinate relationship, rather a relationship of equal partnership.⁴⁷ The environmental planning authorities are forced into a partnership-based collaboration by the law and the allocation of responsibilities that is, in some cases, left open.

Spontaneous organisation and informal action are of particularly great practical significance in the collaboration between authorities.⁴⁸ The low popu- lation, casual mentality and personal contacts in New Zealand facilitate this approach. Being uncomplicated, spontaneous and informal is traditional, and a feature of New Zealand’s environmental administration. This is advantageous when it comes to the co-ordination of planning, as a need for planning is, by its nature, not always foreseeable, rather it arises suddenly and may be temporary. The Resource Managers Group, an informal quarterly meeting of the leading environmental planners in New Zealand, and the Regional Growth Forum, a coalition of the regional and district authorities in greater Auckland, have developed into practically important points of co-ordination. Together with inter-authority committees and working teams, these points of co-ordination form an influential network for official co-operation. The Ministry for the Environment’s interactive website with problem-oriented and theme-focused

44 RMA 1991, ss 30(1)(a) & 31(a).

45 See in more detail Klein, U, “Integrated Resource Management in New Zealand” (2001) New Zealand Journal of Environmental Law 28/29.

46 RMA 1991, ss 59–62.

47. Canterbury Regional Council v Banks Peninsula District Council [1995] NZRMA 453;

Application by Canterbury Regional Council [1995] 118.

48. Klein, supra note 1, ch 11 V 2.

discussion groups constitutes a new forum for information exchange for all planning authorities.⁴⁹

1.7 Binding Force and Legal Protection

In New Zealand, environmental plans are of great practical relevance as laws and standards are lacking in many areas of conservation. The New Zealand population is generally well acquainted with environmental planning, probably mainly because planning does not just affect daily life but actually regulates it, as the contents of the plans are legally binding. While the plan statements bind the issuing authorities themselves and all other planning authorities (internal binding force), regional and district plans are also externally binding (internal and external binding force). The environmental plans in New Zealand contain general abstract regulations that are directly legally binding upon the citizens.⁵⁰ In this respect, New Zealand’s environmental planning distinguishes itself from planning that is only binding on the administrative bodies or merely preparatory planning for purposes of information gain or to incorporate guidelines into a general plan.

The legally binding nature of abstract general regulations is exhibited by the fact that all resource uses may be universally allowed or prohibited. The binding effect arising from the close interlocking of environmental plans with the resource consent regulatory instrument is remarkable.⁵¹ Environmental plans are significant precisely because the decision as to whether an act does or does not require a permit is made at the planning level and not at a separate regulatory or legislative level. The legislator merely abstractly defined five types of activities,⁵² but charged the planning authorities with the task of formulating them more concretely in the environmental plans and regulating their permissibility. In this way the plans are binding for the consent process.

Moreover, the granting of universal legal protection in the area of environ- mental planning is to be praised. A separate jurisdiction was created with the establishment of an Environment Court, which is the court of competent jurisdiction for all legal disputes regarding environmental planning. Every denizen may appeal to the Court to establish the legality of a planning regu- lation. The person filing an action need not be personally affected, nor have a local connection, it is sufficient that he or she has had previous involvement in the official process of drafting the plan (material preclusion).⁵³ It is also possible

49. URL: http://www.qualityplanning.org.nz (1 March 2002). 50 RMA 1991, ss 68, 76, 77.

51 Klein, supra note 1, ch 7 II. 52 RMA 1991, s 104(5), s 2.

53 In the planning process according to RMA 1991, Schedule 1, clause 14(1); in resource consent processes according to RMA 1991, s 120(1)(b).

to petition the Court to ascertain a vertical inconsistency in the content of the planning documents.⁵⁴ In this instance the Environment Court may order the planning authorities to alter the content of a plan, or may repeal the plan. Where planning regulations are contravened by an individual, the Court may likewise be called upon to require a person to undertake a mandatory measure or desist from a forbidden activity.⁵⁵ The Court has the option of ordering the activity to be put to a stop, but it may also award compensation in the form of damages or require environmental restitution.⁵⁶ Further, it is possible to judicially realise the measures set forth by an environmental authority – for example, a rule requiring a third party to comply with planning guidelines – by issuing an enforcement order.⁵⁷ Thus the environmental plans are endowed with a strong power of assertion.

2. Disadvantages of New Zealand’s Environmental Planning

2.1 Wording of Legal Regulations

The legal regulations of the RMA 1991 are in some cases not formulated clearly enough. More than half of the planners who were consulted during the Planning Under Co-operative Mandates (PUCM) Programme were of the opinion that key sections of the RMA 1991 are unclear or difficult to understand;⁵⁸ for instance, the sections concerning the definition of environment and the so-called amenity values, the scope of planning and project assessment, as well as the areas of responsibility and duties of the regional and local environmental planning authorities. The setting-out of principles and purpose in section 5 of the RMA 1991 is heavily criticised.

This criticism is more than justified, as the wording is left open to such an extent that the parliament has effectively not made decisions on basic issues.⁵⁹

54. RMA 1991, s 82; see Klein, supra note 1, ch 9 IV 1.
55. RMA 1991, ss 314–321, see also Campbell, J, “Statutory Remedies: Enforcement Provisions of the RMA” in Williams (ed), supra note 41, para 14.8.
56. RMA 1991, s 314(1)(c); see also Fisher, D E, “The Resource Management Legislation of 1991: A Juridical Analysis of its Objectives” in Hammond, N (ed), Resource Management, Vol 1A (1991), intro 22; Grinlinton, D P, “Enforcement Mechanisms under the RMA” (1992) Planning Quarterly 16.
57. Fisher, supra note 56, intro 22; compare also Marlborough District Council v New Zealand Rail Ltd [1995] NZRMA 357.
58. Ericksen et al, supra note 43, p ix.
59. McLean, J, “New Zealand’s Resource Management Act 1991” (1992) Otago Law Review 545; Williams, D, “The Resource Management Act and the Problem of Legislative Indetermincy” (1995) Resource Management Bulletin 165; Harris, B V, “Sustainable Management an Express Purpose” (1993) Otago Law Review 51.

Amendments and rulings in most instances did not lead to the elimination of legal dissension as was hoped, so the material reach of environmental planning in New Zealand remains unclear.

It is uncertain whether, beyond ecological planning, social and economic planning should also be carried out. Three differing opinions are put forward on this matter.⁶⁰ According to prevailing opinion, the RMA 1991 exclusively facilitates ecological planning; however, others argue it allows planning with ecological, social, cultural, and economic goals. An apt mediatory perspective contends that the scope of planning is not defined in abstract by the law. The law merely stipulates a participative planning process within the framework of which decisions should be made locally. Whether and to what extent social and economic planning should take place is determined in the particular region or district. Accordingly, the reach of planning documents in practice varies immensely, which is the subject of much criticism.⁶¹

The purpose and principle setting leaves linguistically open how the differing concerns stand in relation to one another with regard to priority. It is unclear whether the ecological limits defined by statute are to always be given precedence over issues concerning resource use, or whether all demands are of equal importance. Thus, it is either advocated that the competing demands are to be balanced out, or that it is imperative that the legally defined ecological boundaries be maintained. The courts (that are continually confronted with the question as to what is to have priority) sometimes endorse a strict ecological precedence and at other times support a general balancing-out. There is no clearly perceptible profile of the administration of justice, rather it depends upon individual judges. There has been no subsequent decision from the Court of Appeal or Supreme Court on the question of the priority and scope of planning, so the planning authorities have to tackle the problem. However, the plans seldom take a position with regards to the question of priority. Frequently the wording of the statute is taken on without further elucidation. To the extent that a council does put forward its own view, the planning authorities are unable to reach a consensus.⁶² The guidelines set out by the plans are inconsistent and in some cases conflicting.

The lack of agreement surrounding these basic questions in planning is of concern. Unclear statutory regulations have the consequence that during the

60. Upton, S, “Purpose and Principles in the Resource Management Act” (1995) Waikato Law Review 38; Smith, G, “The Resource Management Act 1991” (1997) Canterbury Law Review 537; Grundy, J K “In Search of a Logic” (1995) New Zealand Law Journal 44; Milligan, J R, “Equity in the Resource Management Act” (2000) New Zealand Journal of Environmental Law 251; Milligan, J R, in Milligan, J R & Turley, R (eds), Resource Management Act (1998), 11–16.
61. See Klein, supra note 1, ch 11 IV 2 a), bb), b).
62. Klein, supra note 1, ch 11 IV 2 bb), b).

planning process authorities must – with the active participation of the public

– consider questions fundamental to planning. Because of the authorities’ restricted capacity, the effects of this are borne out on the ability of the planners to fulfil their planning duties, ultimately at the expense of plan quality.⁶³

2.2 Definition of Integrated management

The law places an obligation on the environmental planning authorities to practice integrated management, without providing a legal definition of this task. As a result the regional policy statements reflect in practice very different conceptions of integrated management. Some statements infer a very narrow understanding,⁶⁴ according to which a vertical and horizontal co-ordination of the authorities’ efforts is necessary in order to be able to counter cross-media environmental problems effectively. Here and there, integrated management is equated with mere co-ordination between authorities, which solely seeks to overcome cross-border environmental problems. However, in most plans a very broad understanding of the integrated management of planning is set down,⁶⁵ that is to say, a holistic or systematic approach is opted for, which recognises and considers the development and protection of resources and the effects upon all other natural resources and people. Far-reaching consequences for planning are thereby generated.

There is, therefore, no uniform understanding of integrated management that prevails in the regions. With regards to this fundamental question, the courts have been very reserved in administering justice and have not revealed any abstract standards. As a result, what is, in practice, to be understood by integrated management is legally unregulated. The Ministry for the Environment did not take action to arrive at a definition, rather it was hoped that an understanding of integration would develop automatically and assert itself in the regions. Amongst planners, disagreement about the exact extent of integration persists. Accordingly, initial studies of planning practice arrive at the conclusion that integrated management is not practised in a systematic and consistent fashion, but rather in an irregular and fragmentary manner.⁶⁶

63. Ericksen et al, supra note 43, p ix; Hutchings, J, “Collaborating for Quality” in Resource Management Law Association (ed), Towards 2000: Annual Conference (1997) 7; Judge Treadwell, W J, “Address to Nelson Conference” in New Zealand Planning Institute (ed), Annual Conference (1994) 1.
64. Klein, supra note 1, ch 11 III 1.
65. Klein, supra note 1, ch 11 III 2.
66. Bush-King, supra note 43, p 13; Frieder, J, Approaching Sustainability (1997) pp 4, 10, 47; Sumits & Morrison, supra note 6, p 25; Ericksen et al, supra note 43, p 9.

2.3 Central government’s Leadership in Planning

In the initial years the central government, in its plan-making, did not fulfil the leading role which it had been assigned under New Zealand’s environmental planning law. It proved to be a momentous disadvantage that, although the law does assign planning duties to the Ministry for the Environment, it does not legally enforce the execution of these duties. Consequently, it is not guaranteed by virtue of the law that the lower-level administrative channels of environmental planning receive the necessary guidance and leadership from the policies of central government, which is vital in order to be able to regulate planning problem areas.

New Zealand’s planning necessarily compels the voluntary collaboration of authorities at all levels and in its manner of operation it is directed toward this co-operative planning model.⁶⁷ Despite the recently introduced power afforded to the Minister for the Environment to direct the preparation of a plan, change or variation,⁶⁸ the central government is primarily entrusted with an advisory and promotional function; for example, through a conceptual role, the provision of planning assistance, and the targeted support of financially weak districts. The support provided by the Ministry for the Environment is not statutorily guaranteed. Thus, in practice, assistance is only offered on a very restricted basis, particularly because the policies of the smaller ministries would lead to the Ministry for the Environment being under-resourced. Commensurate with the neo-liberal political trend, New Zealand’s central government adopted a hands-off approach to political guidance up until 1999. The Ministry restricted its activities primarily to the provision of conceptual information, which the local planners regarded as too abstract, too vague and, ultimately, of little assistance.

The absence of a legal obligation to enact national environmental standards may be deemed unfortunate. The law merely determines the formal process for the passing of national environmental standards and national policy statements. It is at the discretion of the Minister for the Environment however, whether or not use is actually made of the planning instruments.⁶⁹ Until 2004 no national environmental standard has been passed pursuant to the RMA 1991⁷⁰ and,

67. Canterbury Regional Council v Banks Peninsula District Council [1995] NZRMA 453;

Application by Canterbury Regional Council [1995] NZRMA 111–118.

68. Resource Management Amendment Act 2005, s 8 “New Section 25A inserted” and further see s 9, “New section 27 substituted” “Minister may require local authorities to supply information”.
69. See Part IV and V of the RMA 1991.
70. Today some standards exist, see http://www.mfe.govt.nz/laws/rma/standards/index.html (12 July 2004). In particular, NES for air quality have recently been introduced; see above.

except for the New Zealand coastal policy statements and a statement for the protection of biodiversity, no national policy statement has been issued. An explanation for this, in the past, could be the strict requirements of the formal bill-passing process, whereby a commission must be convened, the general public is to be included, a report on environmental consequences and efficiency must be prepared, and a formal decision of the cabinet is entailed. That process is lengthy and cost-intensive. However, changes introduced in 2003 and 2005 respectively enable the Minister to choose a simplified process that gives the public an opportunity to make submissions on proposals before they are implemented.

In practice, the lack of comprehensive binding national standards and statements is connected with considerable disadvantages, in particular a lack of legal certainty, substantial plan divergence, and loopholes in legal protection.⁷¹ The fact that the Ministry for the Environment in the past actively participated in the planning processes of the regions and districts was not an adequate substitute for nationally integrated planning. On the contrary, the actions of the Ministry proved to be counterproductive, as rather than encouraging trusting co- operation they hampered a voluntary collaboration between planning levels.

2.4 Planning Capabilities of the Local Planning authorities

New Zealand’s strongly decentralised environmental planning tends to place excessive demands on local planning authorities. Productive authorities are essential, particularly at the lower levels, in order to be able to carry out the comprehensive planning tasks that are assigned. In practice, however, the funds which smaller districts with lower incomes are able to allocate to planning are very limited, which has a negative impact on plan quality.⁷²

In spite of the local government reform there are still too many small districts with only a few thousand inhabitants, but a large territory to manage.⁷³ In rural areas that are only able to raise limited funds from rates, structural financial problems prevail. Accordingly, planning specialists are often not able to be engaged in sufficient number and adequate financial resources cannot be provided.⁷⁴

Moreover, the new public management reforms were used to reduce staffing levels in the environmental authorities. On the other hand, the local and regional

71. In detail, Klein, supra note 1, ch 10 II 2.
72. Ericksen et al, supra note 43, p 17; Sumits & Morrison, supra note 6, p 43; Ministerial Panel on Business Compliance Costs, Finding the Balance (2001) 64.
73. See Howell, R et al, The Unfinished Reform in Local Government (1996) 53.
74. Hutchings, supra note 63, p 11; Ericksen et al, supra note 43, p viii; Berke, P R et al, “Do Cooperative Environmental Planning Mandates Produce Good Plans?” (1999) Environment and Planning B: Planning and Design 660.

authorities were assigned new environmental planning duties that previously the Ministries had been responsible for.⁷⁵ In these new fields the lower-level planning authorities lack experience and competence. A want of national planning standards further impedes the authorities in the fulfilment of these new duties. Active political support of planning by policy was also necessary; however, it failed to materialise.⁷⁶ Consequently, the planning authorities in the regions faced considerable obstacles to regulation without political support. Well-organised interest groups rejected the new environmental planning and gained the support of local politicians who supported the anti-regulation movement because the planning authorities’ practical capacity was hampered by unreasonable time constraints, unequal funding and under-funding.

2.5 environmental Data and Information

Goal-oriented planning is connected with considerable administrative expense. The standard-setting and justification of plan contents requires a significant volume of environmental data and information as well as an analysis of the structure of environmental problems.⁷⁷ The citizens and interest groups involved in the planning process also have an interest in information about the environment, in order to be able to assess the effects of the plans and, if necessary, to be able to raise objections. In respect of the requisite information base the new planning is thus very costly and demanding. It requires that the planning authorities engage personnel qualified in the natural and social sciences and that they provide the financial resources for necessary studies. This places significant demands on the capabilities of the environmental planning authorities.

Generally the authorities were unable to live up to these expectations in practice.⁷⁸ There is an identifiable lack of environmental data and information that considerably impedes planning. In the districts and regions there is little base data available and a systematic collection and analysis of environmental data only takes place to a limited extent. The earlier land-use planning did not require a rigorous explanation of plans, which is why only rudimentary environmental information systems exist and the reason the planning authorities have only limited resources for research and investigation at their disposal. It is

75. Robertson, W A, “New Zealand`s New Legislation for Sustainable Resource Management” (1993) Land Use Policy 305; Furuseth, O & Cocklin, C, “An Institutional Framework for Sustainable Resource Management” (1995) Natural Resources Journal 243 and “Regional Perspectives on Resource Planning” (1995) Journal of Environmental Planning and Management 182.
76. Klein, supra note 1, ch 12 II 3. 77 RMA 1991, ss 32 & 35.

78 In detail, Klein, supra note 1, ch 11 II 2 d).

clearly evident that efforts are being made to alter this situation; for instance, the environmental assessments in the plans and the separate reports on the condition of the environment written by the individual planning authorities. However, a systematic, across-the-board approach and a scheme for the gathering of environmental information are lacking. The quality of information is likewise in need of improvement, as scientifically tested and accurately formulated environmental information is either not yet available or insufficient, particularly in sparsely populated rural areas.

Thus the burden of procuring and analysing information is obviously more than the financially weak districts are able to cope with.⁷⁹ It is not uncommon for the authorities in such areas to have to resort to using information from the environmental project assessments of applicants or information provided by interest groups participating in the planning process. It has recently become considerably more difficult for citizens and authorities to gain access to independent information. National research institutes have lately had to lay full claim to their costs, not just from individuals, but also with respect to other authorities. The collection and evaluation of data must be separately commissioned. Because of the new client-orientation of research, the routine collection of environmental data has in some cases been suspended or completely discontinued. Environmental planning authorities, interest groups and citizens quite rightly lament that the environmental information required for rational planning is either not adequately available or unaffordable. As a result of its heavy reliance on the necessary environmental information the new environmental planning raises questions, above all with regard to its practical implementation, which have yet to be answered.

2.6 Co-ordination and Procedure

The practice of co-ordination in planning in New Zealand tends to be negatively evaluated. According to the PUCM Programme, deficits and deficiencies in co- ordination – both horizontal and vertical – may be ascertained.⁸⁰ It found that the local and regional environmental plans exist independently of one another, with weak inter-organisational co-ordination, varying policy directions, and little integration of regional policies in local plans. Moreover, it was found that there is no recognisable consistency between the policy statements and plans of neighbouring regions and districts and the differences in content were in some instances very large.

Negative appraisals such as this require explanation and, to some extent,

79. Ericksen et al, supra note 43, p 17; Sumits & Morrison, supra note 6, p 43; Ministerial Panel on Business Compliance Costs, supra note 72, p 64; Klein, supra note 1, ch 11 II 2 b).
80. Ericksen et al, supra note 43, p 25; see also Berke et al, supra note 74, p 659.

correction. They are based on a survey of New Zealand’s environmental planners and express their impressions and, in many cases, their unmet expectations. Corroboratory or contradictory statistics or case studies are, however, lacking. In this regard an objective depiction of co-ordination practice has not as yet been possible, prospective telling studies are awaited. In the interim it can only be established that co-ordination practice falls short of the expectations of many environmental planners. Nevertheless, some difficulties relating to planning co- ordination may already be brought to attention.

One obstacle for co-ordination was, at least at the outset, an inadequate understanding of integrated management.⁸¹ Regional plans had in some cases a directive character with regard to district authorities. It was not until a leading decision by the Court of Appeal was made,⁸² that the necessary realisation was reached that under the RMA 1991 a relationship of partnership between districts and regions exists. In some regions a hierarchical relationship rife with conflict may nevertheless be found in existence between the planning authorities. The main reasons for this are a traditional opposition to all forms of centralist efforts and a politically grounded divergence from plan goals. Meanwhile, polarising attitudes and publications from the Minister for the Environment had caused the situation to escalate,⁸³ as some – for the most part larger – regions and districts were classified as problem cases and their planners were portrayed as bureaucrats and super-planners.

The mediocre plan quality further proved to be a significant disadvantage.⁸⁴ Imprecise planning regulations with poorly formulated goals and policies provided little incentive for collaboration between authorities. For the lower- level planning authorities exactly which planning goals were to take prece- dence remained unclear in many cases. Due to a lack of personnel as well as of technical and financial resources, the necessary means for the co-ordination of planning were not provided. Moreover, the new public management reforms have brought about a strong efficiency and client-focus for environmental administration. The framing conditions of environmental planning have changed insofar as now authorities are to attain the greatest possible outputs at the lowest possible cost and in the shortest possible time. Costly co-ordination processes are only possible on a very restricted basis. Radical restructuring of the authorities has further restricted their capabilities, and employee changes have impeded co-operation between individual planning authorities. In this

81. Bush-King, supra note 43, p 13; Frieder, supra note 66, pp 4, 10, 47; Sumits & Morrison, supra note 6, p 25; Ericksen et al, supra note 43, p 9.
82. Canterbury Regional Council v Banks Peninsula District Council [1995] NZCA 303; [1995] 3 NZLR 189.
83. Not helpful the so-called “think piece” published by the Minister; see McShane, O, Land Use Control Under the Resource Management Act (1998) pp 5, 49 and 100.
84. Klein, supra note 1, ch 11 II.

respect the new public management reforms have proven counterproductive to intensive co-ordination.

2.7 Time and Costs of Planning

The length of time required to draft plans and the costs associated with planning have been the subjects of considerable criticism.⁸⁵ It is commonly held that New Zealand’s environmental planning is too complicated, expensive and time- intensive.

It is true that in some cases the length of time required for drawing up and approving plans is substantial.⁸⁶ After all, it did take four years to prepare and pass New Zealand’s coastal policy statement and an average of six to nine years until the regional policy statements came into force as the central planning documents. In many districts and regions not all district and regional plans have yet come into effect. A significant number are in the process of being challenged by planning authorities or examined by the Environment Court. Moreover, for various reasons, only a small number of national environmental standards and no national policy statements have been issued.

Additionally, the costs of compiling plans are much higher than was anticipated at the time the RMA 1991 was passed.⁸⁷ The costs of a national environmental standard or a national policy statement are estimated to be several million New Zealand dollars. The drafting of a regional policy statement gives rise to costs of between NZ$333,000 and NZ$2,930,000. Up until 1995 each region had spent at least NZ$3,500,000 and at most NZ$4,100,000 on the preparation of regional plans, while for the following three years a further NZ$220,000 to NZ$2,800,000 was forecast. The district plans brought about costs of between NZ$600,000 and NZ$1,700,000. Of plan costs, 85–100 per cent are borne by the local ratepayer. The central government contributes approximately 10 per cent of the costs of regional plans; however, these funds are predominantly allocated to financially weak regions in the form of subsidies. The total nationwide costs of drafting plans are unknown; however, they are estimated at several hundred million New Zealand dollars.⁸⁸

85. Ministerial Panel on Business Compliance Costs, supra note 72, p 61; Crow, S, “The Real Costs of Compliance” (1997) Planning Quarterly 25; Scarlet, D & Matthews, R, “The Costs of RMA Processes” in Resource Management Law Association (ed), Sustainable Management: Annual Conference (1995) 1.
86. See “Status of council plans”: http://www.mfe.govt.nz (20 December 2005). By amendment in 2005 to Schedule I, clause 10, a local authority must now give a decision on a plan submission not later than two years after publishing the proposed plan.
87. The following figures are from Scarlet & Matthews, supra note 85, p 1.
88. Dixon, J E & Ericksen, N J, “Approaches to the Integration of Environmental Protection and Economic Development in Local Government in New Zealand” in Gouldson A and Roberts, P (eds), Integrating Environment and Economy (2000) 60; Dixon J E et al, “Planning

Thus the costs of drafting plans prove to be a significant obstacle to the implementation of the new planning model. It was also disadvantageous that the plan-production phase occurred at a time of severe economic crisis in New Zealand. The implementation of the RMA 1991 was under-funded and the central government placed the entire burden of planning upon the lower-level authorities. The result was a multiplication of costs. Rather than solely passing national planning standards, separate standard- and goal-setting in each region and district was required. However, the planning authorities were barely in a position to be able to do this financially, as they were under severe strain – on the one hand from the high costs of public participation and the sourcing of data and information, and on the other hand they were forced to cut costs because of the new public management reforms. In addition, during the long transition period from the land-use regime of the TCPA 1977 to the resource management system of the RMA 1991,⁸⁹ the authorities had to continue to carry out and administer the old land-use plans.

Representatives of the business community and other users of natural resources complain about the high costs of environmental planning which have arisen for them.⁹⁰ Although this criticism may be the expression of false and unfulfilled expectations with regard to planning which was designed to be in conformity with the market, it is not entirely unfounded. Planning and consent decisions are often contested because of fundamental issues of the RMA 1991 which are unresolved. This leads to costs and delays for the potential resource- user. Also, investors are often uncertain whether a certain project may or indeed must be permitted. Because of the complexity of planning the standards and decisions in the plans are often set and reached in a very abstract fashion. Where plan quality is low there is a danger that unpredictable and subjective decisions will be made in consent processes. This gives rise to costs from lost development opportunities, necessary suspensions and a lack of investment certainty.

Finally, as already mentioned, in some cases the plans display significant divergence in content. For firms that operate throughout the country this introduces difficulties in the implementation of planning standards. They must either establish management systems which flexibly take into account the differences in plan content, or adopt the strictest possible planning standard as their benchmark. For this reason the costs of plan compliance on the whole are high.

under a Co-operative Mandate” (1997) Journal of Environmental Planning and Management

609.

89. RMA ss 364 and following.
90. Ministerial Panel on Business Compliance Costs, supra note 72, p 61; Crow, supra note 85, p 25.