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New Zealand Journal of Environmental Law |
Last Updated: 29 January 2023
117
Public Participation
in Resource Management: The New Zealand Experience
Elizabeth Toomey*
This article follows the path of public participation in resource manage- ment in New Zealand. It looks across the spectrum from the original Brundtland concept of sustainable development and the advent of the Resource Management Act 1991 to the passing of the Resource Management (Simplifying and Streamlining) Amendment Act 2009. For all of New Zealand except the Canterbury region, this 2009 Amendment Act determines the extent of public participation in any current resource management decision. From this stance, the article examines what broad philosophies should shape the future path for community engagement. Attention is then drawn to the Canterbury region and the overlay of emergency legislation. The necessity for an emergency response in the face of devastating earthquakes must inevitably result in a partial or complete suspension of public partici- pation and consultation procedures that are likely to occur in a more ordered environment. This article asks whether the powers granted to the Canterbury Earthquake Recovery Authority and the Minister for Canterbury Earthquake Recovery under the Canterbury Earthquake Recovery Act 2011 achieve a satisfactory balance between the necessity
*Professor, University of Canterbury. The author acknowledges the help of John Goddard, LLM student, School of Law, University of Canterbury, the research of Joseph Lill, former LLB (Hons) student, School of Law, University of Canterbury, Megan Gall, LLB student, School of Law, University of Canterbury and the generous assistance of Gwenda Pearson and Bernadette Cuttance. She is also grateful for the helpful comments of Derek Nolan, Partner, Russell McVeagh, Auckland and Martin Williams, Barrister, Napier and Auckland. She also thanks the New Zealand Law Society for the opportunity to present some of the ideas in this article at a seminar to the legal profession.
to make prompt executive decisions and a continuing recognition of a degree of public participation to ensure that the whole process does not involve a complete suspension of conventional democratic rights.
1. INTRODUCTION
A disgruntled lifestyle resident, an owner desperate to preserve his heritage building, an active local council making a valiant attempt to involve its citizens in the planning of a new central business district, dispossessed landowners and buoyant property developers to whom fate has dealt a lucky hand are all part of the fabric of the greater Christchurch community in New Zealand after a devastating earthquake and a year of aftershocks. It was clear that emergency legislation was essential to rebuild the region. Nonetheless the passing of the Canterbury Earthquake Response and Recovery Act 2010 and its successor, the Canterbury Earthquake Recovery Act 2011, both of which cut across many of the normal Resource Management Act 1991 processes, raised many eyebrows. Were the broad powers given to the Canterbury Earthquake Recovery Authority and the Minister for Canterbury Earthquake Recovery going to deliver the promised balance of community participation in decisionmaking processes and a “focused, timely, and expedited recovery”1 or did the legislation simply herald “unbridled power for five years”?2
This article follows the path of public participation in resource management in New Zealand. It looks across the spectrum from the original Brundtland concept of sustainable development and the advent of the Resource Manage ment Act 1991 to the passing of the Resource Management (Simplifying and Streamlining) Amendment Act 2009. For all of New Zealand except the Canterbury region, this 2009 Amendment Act determines the extent of public participation in any current resource management decision.3 In the simplifying
and streamlining exercise, there is no doubt that public participation has been reduced. From this stance, the article examines what broad philosophies should shape the future path for community engagement.
Attention is then drawn to the Canterbury region and the overlay of emergency legislation. The necessity for an emergency response in the face of devastating earthquakes must inevitably result in a partial or complete suspension of public participation and consultation procedures that are likely to occur in a more ordered environment. This article asks whether the broad powers granted in the emergency legislation achieve a satisfactory balance between the necessity to make prompt executive decisions and a continuing recognition of a degree of public participation to ensure that the whole process does not involve a complete suspension of conventional democratic rights.
The oftcited statement by the Supreme Court in Westfield (New Zealand)
Ltd v North Shore City Council provides a starting point for this discussion:4
[It is] the general policy of the [Resource Management] Act that better substantive decisionmaking results from public participation.
Nonetheless, this statement must be construed in its context. It was made in relation to legislation prior to the 2003 amendments to the Resource Management Act 1991 that dealt with the provisions for notification5 and to the 2009 amendments to the Act that are discussed later in this article. It was a
Management Amendment Act 2011 and Resource Management Amendment Act (No
2) 2011. The latter is the more substantial and focuses on aquaculture activities and the occupation of the coastal marine area. Neither has changed substantially the effect of the 2009 Amendment Act in terms of public participation.
description of the legislative regime that applied at that time. This article will reflect on its effect in 2012.
2. SUSTAINABLE DEVELOPMENT AND PUBLIC PARTICIPATION: THE BRUNDTLAND REPORT AND
SUBSEQUENT INTERNATIONAL INSTRUMENTS
A primary prerequisite for the achievement of sustainable development is broad public participation in decisionmaking:6
The growth of public participation in major natural resource decisions is one of the signal developments of the last years of the Twentieth Century. Public participation promises to be an essential element of the Twenty-first Century. The competence with which public participation issues are handled will make the difference between development done successfully and development that either fails or leaves in its wake large numbers of dissatisfied constituents eager for the next opportunity to hamstring the completed project or the next development.
While the origins of public participation in natural resources development appear to date back to the early twentieth century,7 a significant amount of
1991 Act (now repealed, on 1 October 2009, by Resource Management (Simplifying and Streamlining) Amendment Act 2009 (see now ss 95–95F (and s 95G (inserted, on 1 April 2011, by Marine and Coastal Area (Takutai Moana) Act 2011, s 128))) stated that where notification is not required because of the effects on the environment, the consent authority must still serve notice of the application on all persons who may be adversely affected by the activity (unless all of those persons have given their written approval to the activity). See commentary by Kenneth Palmer “An analysis of recent case law developments” in New Zealand Law Society Seminar (2005) Environmental issues — insight and inspiration at 5. See also Sarah Nolan “Affected persons under the Resource Management Act 1991” [2007] CanterLawRw 5; (2007) 13 Canterbury Law Review 121 at 125–128.
literature emerged in the 1960s and 1970s.8 It was not until the 1980s that the concept attracted international recognition.9
Although the 1992 Rio Declaration on Environment and Development probably best heralds the first international instrument to deal directly with public participation,10 five years earlier the World Commission on Environment and Development (WCED) published Our Common Future (1987) (the Brundtland Report).11 While this primarily addressed the concept of sustainable development, it created a fundamental platform for public participation. In this Report, “sustainable development” was defined as12
a process of change in which the exploitation of resources, the development of investments, the orientation of technological development; and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations.
In its strategic imperative the Brundtland Report maintained that the world must quickly design strategies that would allow nations to move from their present, often destructive, processes of growth and development on to sustainable development paths. This would require policy changes in all countries, with respect both to their own development and to their impacts on other nations’ development possibilities.13
The Report developed critical objectives for environment and development policies that followed from the concept of sustainable development. They include:14
(i) reviving growth;
(ii) changing the quality of growth;
(iii) meeting essential needs for jobs, food, energy, water, and sanitation;
— Lessons from Australia’s First Consensus Conference” (1999) 16 EPLJ 258; Barton, above n 7, at 83.
(iv) ensuring a sustainable level of population;
(v) conserving and enhancing the resource base;(vi) reorienting technology and managing risk; and
(vii) merging environment and economics in decision making.
It is clear that this concept embraced more than an ecological perspective of global environmental problems. In its broadest sense, its strategy for sustainable development aimed at promoting harmony among human beings and between humanity and nature.15
The 1992 Rio Declaration on Environment and Development specifically addressed public participation. Principle 10 stated:16
Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities and the opportunity to participate in decision making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to justice and administrative proceedings, including redress and remedy, shall be provided.
This was accompanied by Agenda 21 that comprised a comprehensive plan of action to be taken globally, nationally and locally by organisations of the United Nations System, governments and major groups in every area in which humans impact on the environment.
The preamble to Chapter 23 of Agenda 21 emphasises the importance of public participation:
One of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decisionmaking. Furthermore, in the more specific context of environment and development, the need for new forms of participation has emerged. This includes the needs of individuals, groups and organizations to participate in environmental impact assessment procedures and to know about and participate in decisions, especially those
which potentially affect the communities in which they live and work. Individuals, groups and organizations should have access to information relevant to the environment and development held by national authorities, including information on products and activities that have or are likely to have a significant impact on the environment, and information on environmental protection measures.
The full implementation of Agenda 21, the Programme for Further Implemen tation of Agenda 21, and the Commitment to the Rio principles were reaffirmed strongly at the World Summit on Sustainable Development (WSSD) held in Johannesburg, South Africa in 2002.
The Earth Charter (an informal document approved by representatives as opposed to sovereign states) is a declaration of fundamental principles for building a just, sustainable and peaceful global society in the 21st century. Its four pillars comprise: respect and care for the community of life; ecological integrity; social and economic justice; and democracy, nonviolence and peace.17
The Aarhus Convention,18 signed in 1998, has been described as “the most farreaching and detailed environmental treaty on public participation to date [2002]”.19 This Convention:20
(i) links environmental rights and human rights
(ii) acknowledges that we owe an obligation to future generations;
(iii) establishes that sustainable development can be achieved only through the involvement of all stakeholders;
(iv) links government accountability and environmental protection; and(v) focuses on interaction between the public and public authorities in a democratic context.
From this discourse, it is clear that sustainable development is considered a holistic concept. It goes further than just environmental concerns. The literature records many approaches to sustainable development. Two notable approaches, namely the anthropocentric approach and ecocentric approach, are discussed below.
The anthropocentric approach is based on a model where society, the economy and ecology are represented by three intersecting circles. Sustainable development is the overlap and intersection of all three circles. The ecocentric approach is represented by three concentric circles. The biggest circle represents ecology, the next biggest circle represents society, and the smallest circle represents the economy.21 The approaches have been described respectively as “weak” or “strong” sustainability.22
Different terms are used to describe sustainability. They include sustainable development, sustainable growth and sustainable use. The authors of the IUCN, WWF and UNEP World Conservation Strategy (1980) observe:23
The term [“sustainable development”] has been criticised as ambiguous and open to a wide range of interpretations, many of which are contradictory. The confusion has been caused because “sustainable development”, “sustainable growth”, and “sustainable use” have been used interchangeably, as if their meanings were the same. They are not. “Sustainable growth” is a contradiction in terms: nothing physical can grow indefinitely. “Sustainable use” is applicable only to renewable resources: it means using them at rates within their capacity for renewal.
“Sustainable development” ... [means]: improving the quality of human life while living within the carrying capacity of supporting ecosystems.
A “sustainable economy” is the product of sustainable development. It maintains its natural resource base. It can continue to develop by adapting, and through improvements in knowledge, organization, technical efficiency, and wisdom.
A “sustainable society” lives by [principles of sustainable living].
In June 2012, the United Nations Conference on Sustainable Development (Rio+20)24 was held in Rio de Janeiro and served as a timely reminder to the
24 It is also referred to as “Rio 2012” or “Earth Summit 2012”.
global community of the continuing need to promote sustainable development. In its sixtysixth session,25 the United Nations General Assembly endorsed the outcome document of the Conference, entitled The Future We Want. Under “Our Common Vision”, the Heads of State and Government and highlevel representatives renewed their commitment26
to sustainable development and to ensuring the promotion of an economically, socially and environmentally sustainable future for our planet and for present and future generations.
The most significant pledge in terms of public participation comprised a recognition that27
opportunities for people to influence their lives and future, participate in decisionmaking and voice their concerns are fundamental for sustainable development ... sustainable development requires concrete and urgent action. It can only be achieved with a broad alliance of people, governments, civil society and the private sector, all working together to secure the future we want for present and future generations.
3. THE RESOURCE MANAGEMENT ACT 1991
The purpose of the Resource Management Act 1991 (RMA) is expressed in s 5 of the Act:
(1) The purpose of this Act is to promote the sustainable management of natural and physical resources.
(2) In this Act, sustainable management means managing the use, develop ment, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while—
(a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(Rio de Janeiro, Brazil, 2012) at 2.
(b) safeguarding the lifesupporting capacity of air, water, soil, and ecosystems; and
(c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.28
The definition in s 5(2) imports concepts of intergenerational equity and also encompasses concepts wider than a physical environment — for example, social and economic.
Comments made during the passage of the Resource Management Bill are significant. Between the First and the Third Readings of the Bill, the Report of the Review Group on the Bill noted that “sustainable management” would remain the cornerstone of the Bill. It rejected the term “sustainable development” in favour of “sustainable management” because:29
One disadvantage of adopting the term “sustainable development” is that the concept outlined in the Brundtland Commission’s report Our Common Future embraces a very wide scope of matters including special inequities and global redistribution of wealth. It is inappropriate for legislation of this kind to include such goals.
4. THE HISTORICAL BACKGROUND OF PUBLIC PARTICIPATION IN THE RMA
The New Zealand legislators made a deliberate choice to adopt the concept of sustainable management.30 This article traces the path of public participation under this regime and explores whether the model of public participation in decision-making, defined so carefully in the international instruments on sustainable development, has remained a fundamental ideal in the New Zealand context.
[1999] NZCA 36; [1999] 3 NZLR 276 at 281, 283, 284; King v Auckland City Council [1999] NZHC 851; [2000] NZRMA 145 (CA); Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17; [2005] 2 NZLR 597 (SC) at [10], [25], [27] per Elias CJ, [45], [46] per Keith J, [105] per Blanchard J, [145] per Tipping J; Progressive Enterprises Ltd v North Shore City Council [2006] NZRMA 72 at [59]–[61]; Waitakere City Council v Brunel [2007] NZRMA 235 at [56], [58].
The Fourth Labour Government in New Zealand (1984–1990) heralded a regime of accelerated change. This was a response to many years of autocratic government under the Third National Government (1975–1984), years characterised by executive dominance of Parliament, Parliament’s habit of overturning judicial decisions, and the costly “Think Big” projects. To counteract this autocratic style of government, the Labour Government introduced a programme of legislative reform that resulted in more open, collaborative and transparent processes of government.31
Significant legislation included the Ombudsmen Act 1975, the Official Information Act 1982, the State Sector Act 1988, the Electoral Act 1993 (MMP), the Citizens Initiated Referenda Act 1993, the Human Rights Act 1993 and the Public Audit Act 2001. It was within this political environment that the Resource Management Bill was introduced by the Labour Government.
The Bill was passed into law by the Fourth National Government32 in 1991. During the Bill’s Second Reading, the Minister for the Environment stated:33
The Bill provides us with a framework to establish objectives by a physical bottom line that must not be compromised. Provided that these objectives are met, what people get up to is their affair. As such, the Bill provides a more liberal regime for developers. On the other hand, activities will have to be compatible with hard environmental standards, and society will set those standards. Clause 4 sets out the biophysical bottom line. Clauses 5 and 6 set out further specific matters that expand on the issue. The Bill has a clear and rigorous procedure for the setting of environmental standards — and the debate will be concentrating on just where we set those standards. They are established by public process.
In the Minister’s terms, the Bill would facilitate development. Under this approach, there was a narrow focus on environmental matters — they were part of a bigger picture of economic and administrative reforms. One commentator considered:34
The [Resource Management Law Reform] was an enormous and impassioned effort. Its conceptual influences were Maori ideas about stewardship and
34 J Frieder Approaching Sustainability: Integrated Environmental Management and New Zealand’s Resource Management Act (Ian Axford New Zealand Fellowship, Wellington, 1997) at 12.
sustainability, the Brundtland Commission report on sustainable develop ment, Our Common Future, international trends towards deregulation, decentralisation and community empowerment, existing New Zealand resource law and public reaction to deficiencies within those laws, as well as the ideas of efficiency and accountability that were at the heart of economic and state sector reform.
Another observed that the RMA “reflected a confusion of market, conservation and Maori perspectives within a formal regulatory regime”.35
5. PUBLIC PARTICIPATION UNDER THE RMA PRIOR TO THE RESOURCE MANAGEMENT (SIMPLIFYING AND
STREAMLINING) AMENDMENT ACT 2009
The RMA has provided the public with a wide scope for involvement in both the preparation of planning documents (the strategic level) and the consideration of resource consent applications (the operational level).36
In terms of public participation, the success or otherwise of the RMA prior to the Resource Management (Simplifying and Streamlining) Amendment Act 2009 (RM(S&S)AA) is best considered in terms of actual results, the perceptions of various participants, judicial comment and academic criticism. This section of the article takes snapshots of the period.
Within these periods, it is important to recognise that the policies and politics in favour of public participation must always be balanced against powerfully asserted claims that the RMA procedures are unnecessarily bureaucratic and cause frustrating delays in development projects. The RMA37
is about striking a balance between those with competing interests — those who wish to make the most of economic opportunities on the land, and those who wish to protect the land for future generations. The Act takes that challenge and addresses a very difficult situation.
(Auckland University Press, Auckland, 1995) at 110.
5.1 Attitudes in 1996
In 1996, the Parliamentary Commissioner for the Environment (PCE) released a discussion document38 in response to a wide range of complaints and information about the ability of tangata whenua39 and the public in general to participate in public authority decisionmaking under various environmental statutes. In that paper, the PCE summarised the most frequent public partici pation issues that arose:
(i) access to information, for instance insufficient time to consider docu- ments or commercial confidentiality preventing access to information relating to potential effects;
(ii) ability to participate, for instance non-notification under the RMA, the narrow interpretation of “affected parties” or inhouse decisions not subject to public scrutiny;
(iii) equitable access to appeal, for instance the view that awarding costs against the appellant was unfair, the fear of large costs discouraging public interest groups from taking appeals or community groups’ lack of access to legal aid;
(iv) council decision-making procedures, for instance the failure to explore alternative means of resolving disagreements between parties or inadequate attention being paid by councils to interested parties who had no legal representation;(v) public participation negated or wasted by decision-makers, for instance due process being followed but the views of certain interested parties not being heeded or due process being followed and the decision seen as fair but nonenforcement of conditions.
Almost all submitters’40 concerns focused on participation within the decisionmaking framework of the RMA. The concerns fell broadly into four areas: the public’s lack of awareness of RMA procedures and a failure to recognise the importance of becoming involved as early as possible in the planning process; inappropriate council management of decisionmaking processes, including prehearing meetings and hearings which are not user friendly; lack of resources (people, skills, funding) for the public to participate
in; and the nature of statutory procedures, including time available and the adversarial nature of hearings.41
The submitters suggested that many of the barriers faced by the public could be solved through good practice by councils, including improved consultation methods, better training for councillors and staff in RMA procedures, better and more userfriendly management of hearings, funding of community advocates, and the development of guidelines for choosing whether to notify resource consent applications.42
5.2 Working towards Best Practice in Conflict Management and Public Engagement43
In response to the submitters’ further queries about matters relating to the resolution of resource management disputes, the PCE considered that the contribution of alternative dispute resolution procedures to decisionmaking under the RMA, including their use to overcome barriers to participation, warranted further investigation and this was the focus in its report released in December 1996.44 Following detailed discussion, the report made six recommendations.
The first two were to Local Government New Zealand who, in consultation with the Ministry for the Environment, were advised to develop guidelines on the conduct of prehearing meetings and hearings under the RMA and, in doing so, identify those issues which lend themselves to resolution through judicial means. They were also advised to establish policies for the management of conflict: for instance, provide clearly written planning documents, and actively encourage preapplication consultation by applicants. The third and fourth were to all local authorities who were advised to establish policies for the management of conflict and to ensure that, within the management of dispute resolution procedures, they addressed issues such as full disclosure of environmental effects, confidentiality, neutral meeting venues and the like. The last two were to the Minister for the Environment. Under the fifth recommendation, the Minister was advised to identify and assess options for funding and to provide an information service network for tangata whenua and members of the public to assist them in making decisions about their involvement in environmental decisionmaking. The sixth recommendation
42 At 1–2.
advised him or her to consider whether relevant amendments to the RMA were necessary to improve the management of conflict. The overall tone of this report was that best practice was attainable but, as yet, had not been achieved.
It is clear that the management of disputes by alternative dispute resolution methods is now well established:45
The mediation provisions of the RMA are frequently used, with a good measure of success. The process is often a time and costeffective way of bridging the gap between parties, especially if there is no difficult issue of law or other reason why agreement might be difficult to reach.
5.3 The Position in 2001–2002
Five years later, it was clear that certain public dissatisfaction still existed. People canvassed for their views generally felt that “there [was] little amiss with the legislation that cannot be remedied but a great deal still wanting in its application”.46 The perceptions of various interest groups were captured in responses such as “We are no further ahead with integrated environmental management than we were thirteen years ago”,47 and “Participatory regulatory systems like the RMA can end up being the depository for community problems that might have been better dealt with through other wider strategic processes”.48 Concerns with the RMA highlighted by one commentator in 200249 included the general and ambiguous nature of s 5;50 the lack of consultation by councils with landowners; and the fact that rights of participation in the planning and decisionmaking process were illusory for some people — for example, non notified applications for consents and the risk of costs awards.51
(Institute of Policy Studies, Wellington, 2001) at 56.
5.4 Consultation: Resource Management Amendment Act 2005
The Resource Management Amendment Act 2005 introduced s 36A of the RMA.52 One of the Amendment Act’s main purposes53 was to improve the Act’s operation in relation to consultation with, and resource planning by, iwi.54 Section 36A states that neither an applicant for a resource consent nor a local authority has a duty under the RMA to consult any person about the application, but each must comply with a duty under any other enactment to consult any person about the application, and each may consult any person about the application.55 It appeared to clarify the existing legal position without change and highlighted usefully56
the freedom to consult that any applicant has, for the obvious reasons that consultation may lead to approval from a person who may be adversely affected and that will then facilitate a non-notification regime.
There are general express requirements for consultation under the Act in the preparation, change and review of national environmental standards,57 policy statements and plans.58 It is widely accepted that consultation is “best practice”59 and that “it remains prudent for resource consent applicants to consult with tangata whenua where they may be affected by proposals”.60 Consultation is part of the process of public participation. It is not an end in itself, but is one method of gathering views from those affected so that they can be taken into
account in the decisionmaking process.61 The essence of consultation has been described as “the communication of a genuine invitation to give advice and a genuine consideration of that advice”.62
5.5 Hard Data in 2007
A further PCE report was released in 2007.63 Within that report, one could readily assume that public participants felt marginalised by the hard data reported in relation to resource consent applications:64 2 per cent were publicly notified by district councils and 9 per cent by regional councils; 60 per cent of consents that required monitoring were monitored; 15 per cent of those failed to meet their conditions; there were more than 9,000 breaches of consent conditions and only eight prosecutions; and less than 1 per cent of applications for consent were declined.
6. THE RESOURCE MANAGEMENT (SIMPLIFYING AND STREAMLINING) AMENDMENT ACT 2009:
ITS EFFECT ON PUBLIC PARTICIPATION
The RM(S&S)AA, as its title suggests, was designed to streamline and simplify. It was inevitable that public participation would be affected in this exercise. This part of the article discusses the main measures that reduce community input.
6.1 The Rationale
The rationale behind the RM(S&S)AA is described as follows:65
This Government was elected on a platform of reducing unnecessary bureaucracy, and specifically on a programme to streamline and simplify the Resource Management Act. Our focus has been on reducing the costs, reducing the delays, and reducing the uncertainties of the Act without compromising its
64 At 66.
65 (8 September 2009) 657 NZPD 6133 — comment by Minister for the Environment at the Bill’s Second Reading.
underlying environmental integrity. This bill is about addressing the vexatious, frivolous, and anticompetitive objections that can add tens of thousands of dollars to the costs of ratepayers and consent applicants. This bill is about getting a singlestep process in place to enable major infrastructure projects to get consent in a more timely way. We want to consign to history the notion that it takes longer to get a resource consent for a piece of infrastructure than it takes to actually build it. This bill is also about speeding up resource consent processing for smaller projects. I do not think there is a member of this House who would not know of a resource management horror story in his or her electorate. The Government wants to give council officials much more discretion when the effects of a resource consent are minor. We want to simplify the decision making, but we also want to hold the councils to account for processing consents in a timely way.
The objectives adhere to a principle of retaining an appropriate degree of public participation in these reforms. Time will tell whether these streamlining and simplifying reforms will achieve a successful balance.
6.2 Measures that Affect Public Participation
The following commentary highlights the main measures of the RM(S&S)AA that affect public participation.
These mechanisms include enabling the court to order security for costs, introducing indemnity costs and a punitive regime, and allowing sanctions against third parties who act on behalf of trade competitors without disclosing information.66
Applications and requests for plan changes are processed by an Environmental Protection Authority with hearings before a board of inquiry. Decisions of the board of inquiry must be made within nine months of the consent being notified
66 Resource Management Act 1991, pt 11A (ss 308A–I) (inserted, on 1 October 2009, by Resource Management (Simplifying and Streamlining) Amendment Act 2009, s 135).
and appeal rights are only appealable on questions of law. Appeals beyond the High Court are restricted to exceptional circumstances.67
These mechanisms include the modification of the further submission process to require that any further submitter show an interest “greater than the interest that the general public has”,68 streamlining decision reporting,69 and removing the ability for appeals to be lodged that challenge entire plans.70 With agreement of councils, applicants for resource consents and notices of requirements can request that their applications be determined by the Environment Court, bypassing the council consenting processes (direct referral).71
There are new provisions setting out how a consent authority determines whether or not to notify an application for resource consent and the manner in which it may do so, in particular the alteration of the test of who is adversely affected for the purpose of limited notification (effects must be minor or greater, previously de minimis), and the removal of the socalled “presumption” in favour of notification.72 With respect to the changed notification provisions, the following comment in the Select Committee Report from the Local Government and Environment Committee is relevant:73
We consider that the amendments we recommend will improve the workability of the new notification procedures, and address some of the concern regarding effects on community participation. Some of us remain concerned that the proposed changes would unduly restrict participation. However, the majority
(Simplifying and Streamlining) Amendment Act 2009, s 149(9)); sch 1, cl 11(1) and (2) (substituted, on 1 October 2009, by Resource Management (Simplifying and Streamlining) Amendment Act 2009, s 149(10)); and sch 1, cl 11(3) (amended, on 1 October 2009, by Resource Management (Simplifying and Streamlining) Amendment Act 2009, s 149(11)).
of us feel that given that approximately 95 per cent of resource consents are processed without public notification, we are not concerned that [the new measures] will severely reduce the opportunity for public participation except at the level of affected parties and providing associated approvals. We consider any remaining concern about the impact of the new notification procedures should be reduced by the opportunity for community engagement at the plan development stage.
There are extended circumstances when the Environment Court may award costs.74
Among measures to reduce these costs is the further reduction of the need for consents to be notified when effects are minor. Councils are only required to publicly notify applications if the adverse effects on the environment are, or are likely to be, more than minor, or an applicant requests notification, or a plan or national environmental standard requires notification.75 There is also a new regulationmaking power in the Act to allow regulations to be made setting a default discount policy for late processing of consent applications.76
The RM(S&S)AA limits thirdparty standing regarding RMA proceedings at the appeal stage under s 274. The AttorneyGeneral is the only person able to represent relevant aspects of the public interest. A person who has an interest in proceedings greater than the general public might be a third party provided they did not infringe trade competition provisions. Submitters on applications can still be a party provided that their submission was made about the subject
Streamlining) Amendment Act 2009, s 30).
matter of the proceedings and did not infringe the restrictions relating to trade competition. The time period for filing a s 274 notice was halved to 15 working days.77
In the Explanatory Note to the Bill, under the Executive Summary, the following comment is made:78
The weight of evidence indicates that many applications are delayed substantially by wideranging appeal rights and uncertain timeframes, which discourages investment. The overall direction of the amendments is to temper the right to object with the responsibility to behave constructively and reasonably; encouraging objectors to consider more deeply the merits of their case, and whether further action is justified.
While some of the proposed amendments will reduce currently numerous opportunities for public participation, the changes represent a rebalancing and streamlining of resource management decisionmaking processes, rather than a fundamental reweighting of the underlying philosophy, purpose or principles of the Act.
It can be argued that the RM(S&S)AA departs from the ideals espoused in the Brundtland Report, the Earth Summit, the Aarhus Convention and, now, Rio+20. However, it must be remembered that the RMA was enacted originally as part of a comprehensive freemarket economic policy. The 2009 amendments are not inconsistent with the Minister for the Environment’s policy vision in 1991. Nonetheless, some of the provisions are likely to weaken or at least reduce the extent of public participation in decisions about how environmental protection is to be achieved under the RMA and/or operate as a disincentive for the public to participate in RMA processes. This could lead to a reduction of dialogue about matters that are likely to have a significant impact on the environment.
7. WHAT BROAD PHILOSOPHIES SHOULD SHAPE THE FUTURE PATH FOR THE
It is clear that the strategy for resource management in New Zealand, as introduced by the 2009 amendments to the RMA, includes a reduction of public participation, for better or for worse. This article reflects on the future of the RMA, natural disasters aside. The author isolates two broad philosophies that future legislators should consider when making further amendments to the RMA that affect any type of public engagement. Effective resource management requires an engaged community. Any present disengagement may well have been mitigated if these basic tools had comprised the backbone of prior amendments.
7.1 When is Public Participation Detrimental and When Does it Make Sense?
Perhaps the sharpest example of a situation when public participation is detrimental can be found in the Citizens Initiated Referenda Act 1993. This Act and citizens initiated referenda generally have been criticised robustly.79 To date, three referenda have been held and the Government has acted on none. There is a significant cost involved in holding referenda (at least $9 million) and there are no substantial benefits. Potentially, citizens initiated referenda are detrimental as many people may support legislation which is not eventually passed into law. The end result is likely to be community frustration with law making processes.
Public participation in the New Zealand Select Committee process can be equally frustrating. Select committees work on behalf of the New Zealand Parliament and report their conclusions to it. They often ask the public for input when they are considering a particular Bill or an enquiry. While the process provides opportunities for citizens to make submissions and influence law- making, in practice, the public input is often compromised, timeconsuming and ineffective.
The difference between these processes and consent applications under the RMA is that challenges to notified consent applications help to ensure that environmental effects are avoided, remedied or mitigated. The scheme of the RMA assumes that public participation will take place but the post 2009 situation differs markedly from the previous regime. There is no longer a presumption of public notification and this arguably calls into question the ongoing applications of decisions such as Westfield (New Zealand) Ltd v North
Shore City Council.80 On a broader view of the 2009 amendments (the first phase of the reform of the RMA), the simplifying and streamlining processes are designed to speed up the process: to “consign to history the notion that it takes longer to get a resource consent for a piece of infrastructure than it takes to actually build it”.81 This suggests that public participation to date has been too timeconsuming and therefore detrimental. Consequent upon that is the issue of cost.
There will never be agreement as to where the line should be drawn in terms of community involvement in a statute such as the RMA. Efforts made to increase the consistency, speed and quality of planning controls and consent processes are likely to include reduced opportunities for current forms of (especially litigious) public participation, or greater reliance on centralised decisionmaking. The rights of potentially affected parties must be balanced against the need to ensure that the processes are not unduly burdensome or costly. As noted by the Local Government and Environment Committee in its Select Committee Report,82 the most important time for public participation is at the plan development stage. The plans determine which activities will require consent and which will not. The opportunity for community input at this stage is fundamental, and caution in reducing participation in this stage of the process is warranted (for example, as was initially proposed, in effectively removing further submission rights). The plan is the tool that not only provides the best opportunity for the councils to meet the purpose of the Act but is also the way in which the councils decide how to meet that purpose in the context of the desires of the people in their region or district.
7.2 What are the Optimum Methods of Public Engagement?
There is considerable literature83 on the optimum methods of public engage ment. From that material, this article suggests a number of fundamental
principles. These encompass the McGechan principles of consultation:84 sufficient information, sufficient time and genuine consideration (including an open mind and willingness to change).
The design and organisation of the process must serve both a clearly defined purpose and the needs of the participants. Public participation can assist with choosing the best direction to follow from the outset by providing fuller information on likely implications of decision options.
For democratic legitimacy and for decisions to be sustainable, methods must be found for addressing the legitimate concerns of all relevant interested parties. Public participation promotes sustainable decisions by recognising and communicating the needs of participants, including decisionmakers, and is based on the belief that those who are affected by the decision have a right to be involved in the decisionmaking process.
Nonetheless, it must be recognised that one of the fraught issues concerning public participation in the New Zealand resource management context is how to manage people or entities seeking to involve themselves in resource management decisionmaking for ulterior motives. For instance, they may be involved in other disputes with the project promoter or they may be looking for a commercial advantage. Not all participants become involved in the decision making process for environmental or public interest reasons. This presents the challenge of devising a workable regime that recognises the concerns of the genuine participants and yet manages to exclude those who are using the system for other means.
It is necessary to ensure that each participatory effort has real potential to make a difference, and that the participants are aware of that potential.
297. See also Office of Parliamentary Commissioner for the Environment, above n 41, at Appendix 1.
All parties should be encouraged to discuss ideas freely, listen to each other and use information in ways that generate new options.
For public participation to be effective, it must be informed. Participants must have the access to key documents and data in order to participate in a meaningful way and to enable sufficient time to prepare submissions to decisionmakers.
Interested parties should be involved from an early stage in order that planning can include their concerns and cooperative resource management can be designed. Early involvement also allows for a process of regular checking to ensure that the design of a proposal is appropriate.
The process must be transparent. A public record of the organisers, sponsors, outcomes and range of views and ideas should be provided. Decisionmakers must make their reasoning understandable and public, including the reasons why they have rejected the views of any interested party.
Conflict must be resolved in the decision-making process. Failure to address conflict can result in public distrust, anger and cynicism.
Opportunity of appeal and redress must be genuine. In many cases, this must include the ability to afford not only legal counsel but also expert witnesses. If the system is biased in favour of wellresourced parties, inequitable outcomes may result.
Once a decision is made, it is important to check that it has the desired effect. Predictions of environmental effect may prove inaccurate in practice, and
resource consent decisions that are not enforced may reduce public faith in the system. A culture of sustained engagement should be promoted with programmes that support ongoing quality public engagement. In the context of this article thus far, what optimum forms of engagement can be deduced from these broad principles?
There are extensive opportunities for public participation in the preparation of policy and plan documents by local authorities.85 The above principles of preparation and efficiency, timing and inclusion are particularly relevant in this regard. The principles do not suggest a freeforall, unmanaged conversation. The McGechan principles of sufficient time and genuine consideration enforce this. The process must be efficient and there must be proper inclusion. The latter principle demands that the concerns of all interested parties are addressed. There are sophisticated ways of achieving this. Little progress can be made if there are protracted hearings with repetitive input from lay submitters on issues that require expert evaluation. In this instance, the interests of the public participants are better served by finding a more simplified and streamlined method that progresses the debate without shutting the people out altogether.
A good example might be the appointment of experts by hearing panels to look at issues raised by submitters in written submissions, without needing to actually physically hear from everyone at a formal or adversarial hearing. The input of this expert advice (which addresses the principle of access) will, in most cases, result in a more equitable outcome for the public participant. The purpose of public participation and the benefits that ensue are described aptly by Keith J in Westfield (New Zealand) Ltd v North Shore City Council:86
The purposes of [the] public participatory processes are twofold — first, to recognise and protect as appropriate the particular rights and interests of those affected and more general public interests, and, second, to enhance the quality of decisionmaking.
8. AN OVERLAY OF EMERGENCY LEGISLATION: THE CANTERBURY EARTHQUAKE RECOVERY ACT 2011
Natural disasters can bring a community to its knees, and the Canterbury earth quakes have been no exception. Emergency legislation has been enacted to ensure the recovery of Christchurch and the broader Canterbury area.
By what can only be described as pure coincidence, seven months before the first major Canterbury earthquake,87 the New Zealand Government attracted harsh criticism from the people of Canterbury for its passing of the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 (ECan Act). This Act succeeded an investigation of the performance of Environment Canterbury (ECan) in discharging its responsibilities particularly under both the RMA and the Local Government Act 2002 for the effective and efficient delivery of the visions and objectives of the Canterbury Water Management Strategy. At that stage, “the issue of freshwater management (both ground and surface water) [was] the single most significant issue facing the Canterbury Region”.88
The Review Report, having observed that ECan’s performance on water policy and management issues fell well short of what was required, recommended “comprehensive and rapid intervention on the part of central government to protect and enhance both regional and national wellbeing”.89 The ECan Act authorises the appointment of temporary commissioners to run Environment Canterbury. It has the power to write and implement new regional plans, impose moratoria on specified applications, bypass access to the Environment Court for, inter alia, applications for water conservation orders in the Canterbury region, and authorise statutory regulations to suspend RMA provisions that regulate regional councils’ activities. Academic comment was sharp:90
The legislative response to Environment Canterbury’s governance issues seems disproportionate and excessive ...
The impetus for government intervention concerned water issues and lack of a watermanagement strategy. These concerns could have been addressed in a measured and proportionate way ...
[W]e should not be blinded to the cost of the government intervention. The two lasting implications will be the negative impact on local government democracy and the rule of law.
In what has been perceived by many as a further blow to democracy, in early September 2012 the Government released its decision not to hold regional council elections in 2013, despite its commitment to do so in the ECan Act.91 The decision has been condemned by past and present local body politicians who allege that Cantabrians are being robbed of their voice in decisionmaking. The Canterbury earthquakes necessitated further government intervention.
Following the September 2010 earthquake, the Canterbury Earthquake Response and Recovery Act 2010 (CERR Act) was enacted by Parliament under urgency. It was modelled on two previous New Zealand statutes: the Epidemic Preparedness Act 2006 and, ironically, the ECan Act. It gave extensive powers to the newly appointed Minister for Earthquake Recovery who could recommend to the GovernorGeneral to decree by Order in Council any provision “reasonably necessary or expedient for the purpose of this Act”.92 Any such Order could grant an exemption from, or modify, or extend any provision of any enactment, including, but not limited to, 22 specified Acts.93 The most significant statute in the context of this article was the RMA. On a broader basis, other relevant statutes comprised the Reserves Act 1977, the Local Government Act 1974, the Local Government Act 2002, the Historic Places Act 1993, the Public Works Act 1981 and the Soil Conservation and Rivers Control Act 1941.
The damaging aftershock on 22 February 2011 brought an early end to the CERR Act. A more robust and longerterm legislative structure was needed and the Canterbury Earthquake Recovery Act 2011 (CER Act), with a life of five years,94 came into force on 19 April 2011. It repealed the CERR Act95 and, by the State Sector (Canterbury Earthquake Recovery Authority) Order 2011, the Canterbury Earthquake Recovery Authority (CERA) was established.
During the passage of both Bills, concerns were raised about the bypassing of important public consultation processes,96 the lack of public involvement and
the lack of respect for basic constitutional principles.97 Despite this, both Bills passed their various readings with only minor opposition. The purposes of the CER Act are expressed broadly:98
(a) to provide appropriate measures to ensure that greater Christchurch and the councils and their communities respond to, and recover from, the impacts of the Canterbury earthquakes;
(b) to enable community participation in the planning of the recovery of affected communities without impeding a focused, timely, and expedited recovery;
(c) to provide for the Minister and CERA to ensure that recovery;
(d) to enable a focused, timely, and expedited recovery;
(e) to enable information to be gathered about any land, structure, or infrastructure affected by the Canterbury earthquakes;
(f ) to facilitate, coordinate, and direct the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of land, infrastructure, and other property;
(g) to restore the social, economic, cultural, and environmental wellbeing of greater Christchurch communities;
(h) to provide adequate statutory power for the purposes stated in para graphs (a) to (g);
(i) to repeal and replace the Canterbury Earthquake Response and Recovery Act 2010.
These purposes advocate considerable community engagement and indeed reflect the ethos of sustainable management as expressed in s 5 of the RMA: a process that “enables people and communities to provide for their social, economic, and cultural wellbeing”.99
This section of the article examines the extent of public participation in the first 17 months of the CER Act’s existence. The statutory provisions are expressed as they appear in the CER Act but, as becomes clear, some of the deadlines have already passed.
8.1 Input from the Community
A general provision in the CER Act provides for community input. The Minister for Canterbury Earthquake Recovery (the Minister) must arrange for
a community forum to be held for the purpose of providing him or her with information or advice with respect to the operation of the CER Act.100 The Minister must invite at least 20 people who are suitably qualified to participate in the forum101 and that forum must meet at least six times a year.102 The Minister and the chief executive must have regard to any information or advice he or she is given by that forum.103
8.2 Recovery Strategy and Recovery Plans
The chief executive must develop a recovery strategy and submit the document to the Minister for his or her consideration and, if the Minister so recommends, the GovernorGeneral may approve it.104 The recovery strategy is an overarching, longterm strategy for the reconstruction, rebuilding, and recovery of greater Christchurch.105 It must be developed in consultation with the Christchurch City Council, Environment Canterbury, Selwyn District Council, Waimakariri District Council, Te Runanga o Ngai Tahu,106 and “any other persons or organisations that the Minister considers appropriate”.107
The process for the development of a draft recovery strategy (completion date: 19 January 2012) must include one or more public hearings at which members of the public may appear and be heard.108 A draft recovery strategy must be publicly notified.109 The notification must advise where the document can be viewed; and must invite members of the public to make written comments on the document in the manner and by the date specified in the notice.110
No RMA document (defined as a regional policy statement, a proposed regional policy statement, a proposed plan, or a plan; and any changes or
104 Section 11(1), (2).
variations to any such document),111 including any amendment to the document, that applies to any area within greater Christchurch, may be interpreted or applied in a way that is inconsistent with a recovery strategy.112 Once a recovery strategy has been approved, it must be read together with and form part of the RMA document and prevails where there is any inconsistency between it and the document.113 No provision of the recovery strategy, as so incorporated in an RMA document, may be reviewed, changed or varied under Schedule 1 of the RMA (“Preparation, change and review of policy statements and plans”). In essence, the CER Act overrides the normal preparation stages and public participation procedures under the RMA.
The Minister may direct one or more responsible entities to develop a recovery plan for all or part of greater Christchurch for his or her approval.114 There must be a recovery plan developed for the whole or part of the CBD (completion date: 19 January 2012)115 and this must be led by the Christchurch City Council, in consultation with affected communities.116 Parties that must have the opportunity to provide input into that recovery plan are CERA, Environment Canterbury and Te Runanga o Ngai Tahu.117 However, the Minister, at his or her discretion, may also require the Christchurch City Council to enable other specified persons or organisations to have the opportunity to provide an input into its development.118 The process for the development of the proposed recovery plan for the CBD must include one or more public hearings, as determined by the Christchurch City Council, at which members of the public may appear and be heard.119
The Chief Executive of the Christchurch City Council must ensure that any draft recovery plan for the CBD is publicly notified and a copy of it must be
provided to the Minister, the chief executive of CERA, Environment Canterbury and Te Rununga o Ngai Tahu.120 All other draft recovery plans must be publicly notified, and any such notification must advise where the document can be viewed and invite members of the public to make written comments on it in the manner and by the date specified in the notice.121 With respect to these other recovery plans, the Minister can exercise his or her discretion as to how they are to be developed, including any requirements as to consultation or public hearings.122
Apart from these requirements of consultation and public notification, neither the Minister nor any responsible entity has a duty under the CER Act to consult any person about the development of a recovery plan.123 Nothing in s 32 (“Consideration of alternatives, benefits, and costs”) or Schedule 1 of the RMA (“Preparation, change and review of policy statements and plans”) applies to the development or consideration of a recovery plan.124
Once the Minister has decided to approve a recovery plan, having made any changes he or she considers fit,125 notice must be given in the Gazette of its issue and where it can be inspected.126 The recovery plan must be publicly notified in whatever form the Minister considers appropriate.127 The Minister can exercise his or her discretion to amend or replace the recovery plan using processes he or she considers appropriate including, if appropriate, consultation with parties involved in the plan’s development.128
Once the recovery plan has been notified in the Gazette, any person exercising functions or powers under the RMA must not make a decision or recommendation that is inconsistent with the plan on any of the following matters under the RMA:129
(a) an application for a resource consent for a restricted discretionary,130 discretionary, or noncomplying activity (whether or not the applicaton was first lodged after the Recovery Plan was gazetted);
121 Section 20(2), (3).
128 Section 22(1), (2).
(b) a notice of requirement (whether or not the notice was given after the Recovery Plan was gazetted);
(c) an application to transfer a resource consent under section 135,131136,132 or 137;133
(d) an application to change or cancel the conditions of a resource consent under section 127;134
(e) a review of a resource consent under section 128;135
(f ) the preparation, change or variation of an RMA document under Schedule 1.
Despite anything to the contrary in Part 5 of the RMA (“Standards, policy statements and plans”), a council must amend an RMA document if a recovery plan so directs136 without using the process in Schedule 1 of the RMA or any other formal process.137 Nothing in s 85 of the RMA (“Compensation not payable in respect of controls on land”) applies in respect of any amendment to an RMA document under this directive to amend.
In respect of any application for a resource consent for any activity specified in a recovery plan, nothing in s 88A(1A) of the RMA applies.138 Section 88A(1A) of the RMA states that if an application for resource consent has been made and the type of activity for which the application was made has been altered subsequently, that application should continue to be processed, considered and decided as an application for the type of activity that it was for at the time the application was first lodged.
8.3 Suspending, Amending or Revoking RMA Documents or RMA Activities
The Minister may, by public notice, suspend, amend or revoke the whole or any part of, inter alia, an RMA document so far as it relates to any area within greater Christchurch.139 The Minister may, by public notice, suspend or cancel,
in whole or in part, any of the following for an activity within the greater Christchurch area: a resource consent; any use protected under ss 10,140 10A141 or 10B142 of the RMA; and/or any certificate of compliance under the RMA. If practicable, the Minister must notify any affected parties by giving them an appropriate written notice.143
If a resource consent is cancelled or revoked, in whole or in part, the chief executive, at his or her discretion, can direct that the holder of the consent remains liable for performing any of the conditions under the consent and for retaining the whole or part of any bond paid under the RMA.144 No compensation is payable under the CER Act in respect of any of these actions.145
8.4 Building Works and Subdivisions
The chief executive may carry out or commission works that include erection, reconstruction, placement, alteration, extension, demolition, removal and disposal of all or any part of buildings and structures.146 Such works may be undertaken on or under public or private land, and with or without the consent of the owner or occupier.147 While the CER Act makes it clear that these powers do not override any requirements for the necessary resource consents or building consents, any such requirement can be varied by Orders in Council made under the Act.148
The Crown is not liable to compensate the owner or any tenant or other occupier when a dangerous building149 is demolished.150 However, Crown liability for compensation does accrue when a nondangerous building is demolished in order to demolish a dangerous building or for any other reason, or when negligent physical loss or damage is caused to other property as a result of demolition.151
successful challenge concerning the exercise of this power (Independent Fisheries Limited v The Minister for Canterbury Earthquake Recovery [2012] NZHC 1810).
146 Section 38(1), (2).
147 Section 38(5).
148 Section 38(5), (6).
The chief executive may subdivide, resubdivide, amalgamate, improve and develop all or any land acquired by the Crown under the CER Act, and nothing in s 11 (“Restrictions on subdivision of land”) or Part 10 (“Subdivision and reclamation”) of the RMA applies to any such subdivision. The chief executive can erect or authorise the erection or use of any temporary building on any public reserve, private land, road or street, without any requirement for a building or resource consent.152
8.5 Directions
The Minister may direct any council or council organisation to take or stop taking action, or to make or not make a decision,153 and this applies to any action or inaction that is required, authorised, or prevented by or under:
The Minister may require a council or council organisation to perform or exercise certain responsibilities, duties or powers of the council or organi sation161 and failure to do this may result in the Minister assuming those responsibilities, duties or powers by issuing a callin notice.162
8.6 Provisions Relating to Real or Personal Property
There are various provisions relating to the Crown’s acquisition and disposal of property and offerback procedures. These affect corresponding provisions in the Public Works Act 1981, and discussion is beyond the scope of this article.163 However, one statutory provision deserves mention in the context of public participation. Under s 52 of the CER Act, the chief executive can direct owners of any two or more adjoining or adjacent properties to act for the benefit of each
other, if he or she considers that appropriate.164
8.7 Compensation
Part 2, subpart 5 of the CER Act prescribes the compensation regime under the Act, and states that nothing in s 185 of the RMA (“Environment Court may order taking of land”) applies in relation to this subpart.
8.8 Very Limited Appeal Rights
There is no provision to make submissions or appeals on the recovery strategy. There are only two rights to challenge a recovery plan.
A council, requiring authority or heritage protection authority165 may request the Minister to consider and decide whether a decision or recommendation is inconsistent with such a plan,166 and any of these bodies has a right of appeal to the High Court against the Minister’s decision.167
Any person who would otherwise have had a right of appeal or objection under the RMA168 may appeal to the High Court against a decision on an application for resource consent or a notice of requirement for an activity or use that is specified in a recovery plan as being subject to the appeal provision.169
Any person who would otherwise have had a right of appeal or objection under the RMA170 may appeal to the High Court against a decision under the RMA that has been called in by the Minister.171 The council or council organisation concerned and the affected person172 may appeal to the High Court
against a callin notice issued by the Minister173 for non-compliance of specified actions.174
A claimant175 can appeal to the High Court against a determination of com pensation;176 as can an adjoining owner177 who disputes a survey definition.178
The High Court may appoint one or more suitably qualified persons (including an Environment Commissioner or other expert) to assist it by giving advice if the court considers that appropriate.179 The direct route to the High Court has drawn the following response:180
The ability to take [appeals] ... to the High Court, rather than the Environment Court, indicates a possible intention to restrict access to the latter body, but the option has some consistency with the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010, which removes appeal rights in certain areas of the Environment Court [s 52].
Anyone subject to a compliance order may appeal to the High Court against the making of the order.181 There are rights of appeal to the Court of Appeal and in some cases to the Supreme Court.182 The CER Act states very clearly that these are the only rights of appeal.183
9. WHAT HAS HAPPENED?
9.1 Public Participation in the Development of the Recovery Strategy and the City Recovery Plan
The CER Act is focused primarily on a timely and expedited recovery. While the development of both the Draft Recovery Strategy and the Draft CBD Recovery Plan eliminated the normal preparatory assessments and public participation procedures under the RMA, the mandates for public involvement were well managed.
CERA acknowledged that community input on the development of the Recovery Strategy was crucial to Canterbury’s recovery. In mid2011, eight community workshops were held around the greater Christchurch area184 and approximately 600 written submissions or online submissions were received when the opportunity for input arose. An online planning game (“Magnetic South”) was created to formulate ideas and CERA considered the public’s input in the Christchurch City Council’s “Share an Idea”185 campaign and the Sustainable Cities Forum. Four public information sessions were held and meetings were convened with stakeholder groups including the arts and heritage sectors and the business leaders. There was public consultation with local and government agencies and significant input from Te Runanga o Ngai Tahu. CERA also convened a group of senior staff from local authorities and the New Zealand Transport Agency to provide necessary process and content in the Strategy’s development.
The Draft Recovery Strategy was notified on 10 September 2011 and there was a sixweek window for written comment. The draft summary was delivered to residences in greater Christchurch, and it was advertised widely on websites, newspapers and the radio. Sector groups were encouraged to provide feedback and resources were created on the CERA website to support communityled discussion. The Draft Recovery Strategy was revised in the light of comments received and the final Draft document was presented to the Minister in early January 2012. It was approved by the Canterbury Earthquake (Recovery Strategy Approval) Order 2012 made by the GovernorGeneral.186
The Christchurch City Council, charged with the development of the Recovery Plan for the Central Business District (CBD), endeavoured to engage the community. In May 2011, the Council held a “Share an Idea” campaign where it invited members of the public to provide input on the redevelopment of the central city. The presence of more than 10,000 people at the weekend campaign was testament to strong public interest in the future of the city. Consultation continued until the release of the Draft CBD Recovery Plan in August 2011. Written comments were invited on it until 16 September 2011 and these comments were heard and received by the Council in October 2011 and
deliberated on in November 2011.187 After the final Draft Plan was presented to the Minister on 21 December 2011 for notification and consideration, there was a further invitation for public comment until 3 February 2012.188
Commendable opportunities were created for public participation in the planning stages of both the Draft Recovery Strategy and the Draft CBD Recovery Plan. The Canterbury community did not, of course, comprise a single voice and, in their compilation of the two documents, both CERA and the Christchurch City Council attempted to find the correct balance. This was not an easy task. Perhaps three of the most vocal groups of participants in the CBD Recovery Plan were the general public, the business community and city investors, and the tourism industry executives. The collated data from the “Share an Idea” campaign demonstrated an overwhelming desire from the general public for a green, parklike city centre with a mix of residential, retail and business clusters, cycle lanes and, most of all, lowrise buildings. The business community and city investors warned that these city visions needed to be tempered with reality. In order to attract commercial investors back into the city, there must be real financial incentives. An inability to build premises more than the favoured five storeys high would deny any commercial investor a realistic rental return. Chief executives of the tourism industry are not concerned primarily with the desires of the local population. Faced with the destruction of many old heritage buildings and churches for which Christchurch has always been renowned, they need to devise a new city image that will attract overseas visitors. Their visions may not necessarily reflect the public’s ideals. As noted above, the Recovery Strategy was approved on 31 May 2012. In his review of the Draft CBD Recovery Plan the Minister, taking into account its impact, effect and funding implications, concluded that it could not be approved without amendment. Two main concerns comprised insufficient information on how the Recovery Plan would be implemented and the unnecessarily complex proposed changes to the District Plan. Consequently, the Minister established a special unit within CERA, the Christchurch Central Development Unit (CCDU). The task of the CCDU was to develop a 100 day blueprint for the central city that would provide for the rebuild and create certainty designed to encourage and support investors. At this stage, there was no public participation. Indeed, an element of secrecy surrounded the blueprint development for fear of leaking very sensitive information as to the location of
pivotal buildings.
The blueprint was released on 31 July 2012. It identified areas of land in the CBD that will be used for development of anchor projects and precincts.
The implementation of the blueprint requires government acquisition of approximately 840 privately owned lots, either by negotiation or, if that fails, compulsory acquisition.189 It was not surprising that there was an element of public discontent following the Plan’s announcement. At this stage of the recovery process, the public (primarily the landowners of the targeted plots, both commercial and residential) were affronted by the lack of consultation. At the time of writing, the land acquisition is just beginning. CERA is hopeful that most of the landowners will cooperate and enter into normal commercial negotiations. If not, compulsory acquisition will follow. It is difficult to predict the outcome of public feeling as the Recovery Plan develops.
There is no right to make submissions or appeals on the Recovery Strategy and there are only two rights to challenge any recovery plan. A signedoff recovery plan overrides many functions and powers under the RMA.
9.2 The CER Act and the RMA: Suspending Public Participation for a Focused Recovery
The Canterbury earthquakes have had devastating consequences. An emergency response was essential and CERA and the Minister have the necessary powers under the CER Act to facilitate Canterbury’s recovery. It is inevitable that their actions will suspend, to a greater or lesser extent, normal public participation and consultation procedures. This article is written in the very early stages of this recovery process. Any longterm view of whether decisions that involved limited or no public participation or consultation were wisely made will be the subject of later commentary. This article comments on three early developments.
In recent years heritage has been recognised “as a significant element in any regional policy statement, and in any regional and district plan”190 and applications for a resource consent to demolish or remove a listed heritage building require careful assessment by a consent authority.191 Under the CER Act, CERA may commission the demolition or removal and disposal of all or part of a building.192 The exercise of this power has been challenged unsuccessfully in one of the few reported cases on the CER Act 2011.
The plaintiff in Hampton v Canterbury Earthquake Recovery Authority193 had an interest in a listed CBD heritage building. CERA considered that the building had to be demolished for safety reasons. The plaintiff sought judicial review of this decision. He wanted an opportunity to persuade CERA that he could make the building safe. In order to do this, he removed approximately 24 tonnes of chimney bricks and clay roofing tiles that were creating internal pressure on the timber structure and that could have caused the collapse of the building. He also removed a turret structure on the building to eliminate the hazard of the structure toppling onto the neighbouring property.
Whata J observed that the discretion conferred by ss 38 and 39 of the CER Act is a broad one. The chief executive may carry out the demolition of all or part of the building without any specific criteria. No notice needs to be given if the work is necessary because of a sudden emergency causing or likely to cause loss of life or injury.
The Judge was conscious that “the powers involved are both wide and invasive of rights that the common law stridently seeks to protect from unlawful interference”.194 His Honour needed to satisfy himself that CERA did not approach the threshold test for “dangerous” in an erroneous or unreasonable way. Having scrutinised the evidence he was satisfied that it did not. He then observed that he could not do more than that, as the discretion on the issue was for the decisionmaker, CERA. CERA provided three expert witnesses; the plaintiff, representing himself, provided none. The Court held there was a basis for finding that the building was dangerous. The plaintiff made a second point that even if there was such a basis, CERA needed to turn its mind to whether or not there was an alternative to demolition.
Whata J noted that it did not appear that consideration had been given by CERA in the decisionmaking process to the alternative of bracing the building; and observed that given the invasive and drastic consequences of demolition, it should have, in its decisionmaking process, expressly considered alternative methods of dealing with the property, including mitigation techniques. However, overall, he was satisfied that mitigation would not remedy the problem. Reminding himself that the resolution of whether a building is dangerous is “for CERA and CERA alone”,195 he refused a grant for interim relief.
195 At [45].
In November 2011, CERA issued a partial demolition order for the Christchurch Cathedral (a Category 1 listed heritage building)196 to enable the cathedral leaders to circumvent normal RMA procedures in their efforts to make the building safe. Left with the power to decide how they would manage the demolition, four months later the leaders announced that most of the Cathedral would be pulled down leaving only two to three metres of the walls. This was the most drastic of three options before it and was a bitter blow for the many Cantabrians who regard the Cathedral as the city’s jewel.
Equally distraught were the members of the New Zealand Historic Places Trust who had advocated a less invasive option that, although more costly, would have retained much of the heritage “fabric”:197
As with many other heritage buildings, as well as its important primary role as a place of prayer and worship for the Anglican community, it is also a place symbolic of the identity of Christchurch ... management decisions need to be cognisant of the wide range of public values associated with the building.
The Trust considered that CERA’s exclusive rights to approve demolitions curtailed any power it might have to protect Canterbury’s heritage.
Using a controlled passageway through the cordoned CBD, more than 60,000 people paid their last respects to their quakedamaged Cathedral over two weekends in March 2012.
However, the debate has not yet ended. The Great Christchurch Building Trust (GCBT) has filed proceedings in the High Court at Christchurch seeking a declaratory judgment that the Anglican Church cannot demolish the Cathedral as it would breach certain church property trust statutory provisions. The Christchurch community awaits the outcome of this development.
The applicants in Independent Fisheries Limited v The Minister for Canterbury Earthquake Recovery198 sought judicial review of decisions the Minister made with respect to the 1998 Canterbury Regional Policy Statement (1998 RPS).199
199 An “RMA document” includes a regional policy statement and a district plan (both proposed and operative): Canterbury Earthquake Recovery Act 2011, s 4.
In October 2011, the Minister used s 27(1)(a) of the CER Act200 to amend the RPS by inserting, and making immediately operative, new chapters 12A201 and 22.202
The Minister also revoked Proposed Change 1 (PC1) to the 1998 RPS which was under appeal to the Environment Court. Section 10(1) of the CER Act, a pivotal statutory provision in the proceedings, states:
The Minister and the chief executive must ensure that when they each exercise or claim their powers, rights, and privileges under this Act they do so in accordance with the purposes203 of the Act.
(i) Background
After the 1998 RPS became operative, the second respondents (Canterbury Regional Council, Christchurch City Council, Waimakariri District Council, Selwyn District Council and New Zealand Transport Agency, referred to in the judgment as the Urban Development Strategy (UDS) partners) expressed concern that it lacked specific direction as to the location, timing and form of urban growth for greater Christchurch. In 2003, after initiating a consultative process to develop a growth strategy for the area, the group decided to support a detailed strategy in the form of PC1 that was publicly notified by the Canterbury Regional Council in 2007. Amongst other things, PC1 identified urban limits through to 2041. It specified the sequencing of new greenfield land for residential development and directed that urban development was not to occur outside the specified urban limits applying from time to time. A long-standing policy of precluding noise sensitive uses within the 50 dBA Ldn contour around Christchurch international airport was also supported. Independent commissioners heard submissions on PC1 and made recommendations to the Regional Council. The Regional Council accepted the recommendations in December 2009.
Broadly, the Regional Council’s decision upheld the approach signalled by PC1 although, in some cases, new greenfield areas for residential development resulted in changes to the location of urban limits. “Special Treatment Areas” involving land owned by some of the applicants were also identified and the Christchurch City Council was directed to investigate an appropriate zoning for the land within those areas (that were now within the urban limits). Although the use of a 50 dBA Ldn contour around the airport was upheld, there was provision for growth within the contour at Kaiapoi.
The Regional Council’s decision attracted approximately 50 appeals to the Environment Court. These included appeals by five of the applicants and the sixth joined the appeals under s 274 RMA. Appeals were also lodged by two of the UDS partners (Christchurch City Council and Waimakariri District Council) and by Christchurch International Airport (an intervener in the proceedings).
Initially, the first phase of these appeals was to be heard by the Environment Court in June 2011. However, the hearing was adjourned for two months as a result of the earthquakes. Later requests by the UDS partners for further adjournments were refused. As time went by, the UDS partners were able to reach agreement with some of the appellants but these settlements were opposed and the Environment Court declined to endorse them at the time. The Regional Council’s announcement that it did not intend to defend its decision attracted strident criticism from some of the appellants.
Ultimately, the second phase of the appeal process was set down for hearing over the period November 2011 to March 2012. The UDS partners sought an adjournment on several grounds, including the likelihood that the Draft Recovery Strategy that had been released would overrule PC1 and that council resources were needed for recovery purposes. In September 2011, the Environment Court refused that adjournment. The UDS partners sought judicial review of this refusal,204 and other parties sought to join the review, both for and against. However, before this application could be considered by the Court, the Minister notified his decision to revoke PC1. A notice of discontinuance was then filed.
In his affidavit to the Court, the Minister emphasised the necessity to free up land in the Kaiapoi area (a northern suburb) to enable residential development to occur to accommodate those displaced in the township and also from other residential “red zones”. Residents who owned property in the designated “residential red zones” — areas of land deemed unsuitable for continued residential occupation for a prolonged period of time — were given offers by the Government to purchase their properties. This, of course, led to significant pressure from people wishing to relocate.
(ii) Chapter 12A
In broad terms, chapter 12A gave effect to the relief sought by the UDS partners in their appeals to the Environment Court. It also reversed the changes that had arisen from the Regional Council’s decision that had been supported by the applicants.
204 Canterbury Regional Council v The Environment Court of New Zealand HC Christchurch CIV2011409001953.
(iii) Chapter 22
The Minister’s stated objective in the insertion of chapter 22 was to provide for and manage urban growth within greater Christchurch while protecting:
(a) the safe and efficient operation, use, future growth and development of Christchurch international airport; and
(b) the health, wellbeing and amenity of the people through avoiding noise sensitive activities within the 50 dBA Ldn air noise contour.
This objective was supported by two policies: first, to provide for residential development at Kaiapoi inside the 50 dBA Ldn noise corridor to offset the displacement of residential activities at Kaiapoi (from the earthquakes); and, secondly, to avoid noise sensitive activities within the air noise corridor except as provided for in the first policy.
(iv) PC1
The Minister, acting against advice given to him in briefing papers, revoked rather than suspended PC1.
(v) The allegations
The applicants alleged that the Minister’s decisions concerning the 1998 RPS were tainted with illegality for one or more of five reasons. This article focuses on three reasons205 that specifically address the issue of public participation:
(a) The Minister’s use of the power under s 27 of the Act was principally exercised for ulterior (unauthorised) purposes, and not for the purpose for which the power was conferred by s 3 of the Act;
(b) The Minister’s decision entails the misapplication of a statutory power insofar as the Minister’s decision (particularly in relation to chapter 12A) implements a recovery strategy measure, where, on a proper interpretation of the Act, another statutory power and procedure was intended to be used for that purpose; and
(c) Insofar as appeals before the Environment Court were terminated as a result of the exercise by the Minister of the s 27(1) power, the Minister has deprived parties of a fundamental right of access to the courts, and has thus exceeded his statutory power.
205 The other reasons comprised: the Minister’s unnecessary exercise of the power; and the Minister’s failure to take into account relevant considerations. See the High Court decision ruling on the Minister’s intervention: Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1909, [2012] NZAR 785; upheld by the Court of Appeal for additional reasons given: Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601 (judgment 20 December 2012).
(vi) Use of power for unauthorised purposes
The Court, citing Unison Networks Ltd v Commerce Commission,206 observed that it must identify the legal limits of the power rather than assess the merits of its exercise. It noted that s 10(1) of the CER Act did not allow the Court much latitude. The statutory provision indicated that, subject perhaps to de minimis, Parliament did not intend the Minister to pursue any purposes beyond those specified in the Act. The Court identified seven purposes behind the Minister’s decision to amend the 1998 RPS and revoke PC1 and although the first five were within the purposes of the Act, the last two were not. Those two purposes comprised: the addition of chapter 12A to deal with the development of greater Christchurch, including the extension of the urban limits; and the addition of chapter 22 to protect the airport from “reverse sensitivity” claims by settling where the 50 dBA Ldn contour line was and its effects.
In chapter 12A, the Court considered that earthquake recovery was an incidental purpose within a detailed document and references to earthquake recovery were isolated and cosmetic. It noted that the planning period was until 2041. Similar considerations applied to chapter 22. Again the 1998 RPS was used as a vehicle to resolve an issue that existed long before the earthquakes. Chapter 22 was not driven by earthquake recovery objectives under which elimination of public participation might have been acceptable.
(vii) Misapplication of statutory power
The Court agreed with the applicants’ contention that instead of using s 27 of the CER Act to amend the 1998 RPS the Minister should have used the Recovery Strategy or a Recovery Plan, thereby allowing public participation. The Court confirmed that s 27 does not provide an alternative and independent mechanism in situations where the Recovery Strategy or a Recovery Plan should be used. As is clear from the commentary above, statutory safeguards in the form of considerable public participation accompany the development of both the Strategy and the Plan.
(viii) Right of access to the courts
The Court observed that the right of access to the courts is deeply embedded in New Zealand law. It was satisfied that the revocation of PC1 deprived the applicants of access to the Environment Court (and also the possibility of pursuing any appeals against that Court’s decision). It also deprived the applicants of a private right as the applicants’ private use of land was in issue. It then considered whether this deprivation was authorised by s 27 or any other provision of the CER Act 2011 and concluded that there was no such authorisation. The general words in s 27 fall well short of expressly authorising
206 Unison Networks Ltd v Commerce Commission [2008] 1 NZLR 42 (SC) at [54].
the Minister to suspend, amend or revoke RMA documents for the purpose of removing the jurisdiction of the Environment Court. It noted strong parallels between the case and Ex parte Witham 207 in which Laws J stated:208
Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically
— in effect by express provision — permits the executive to turn people away from the Court door.
That was not the case either in that instance or in these proceedings.
(ix) The result
The applicants were successful on all five grounds. The application for judicial review was granted and the Minister’s decisions inserting chapters 12A and 22 into the 1998 RPS and revoking PC1 were set aside.
This decision has been appealed. The appeal was dismissed for reasons given by the Court of Appeal in December 2012. The Court held the Minister had not acted for an unlawful purpose, but had failed to reasonably consider whether it was necessary to exercise the powers.
10. BACK TO THE BROAD PHILOSOPHIES
The CER Act 2011 is focused primarily on a timely and expedited recovery. There are no rights to make submissions and there is no right of appeal with respect to the Recovery Strategy. Only very limited submission and appeal rights are available with respect to the Recovery Plans. An RMA document may be suspended, amended or revoked; and an existing resource consent, an existing use and any certificate of compliance can be suspended or cancelled. The Minister has extensive intervening powers with respect to existing district and regional plans and existing or proposed resource consents. For these actions, there is no right of appeal.
While these nonparticipatory measures would invoke a powerful public reaction in a normal ordered environment, the situation in Canterbury is unique. The region’s citizens require clear legislative direction as they embark on a massive programme to rebuild their destroyed city. With every challenge comes an opportunity and there are some signs that CERA is exercising the wide and invasive powers bestowed on it by the CER Act as cautiously as possible.
207 R v Lord Chancellor: Ex parte Witham [1997] EWHC Admin 237; [1998] QB 575. 208 At 586.
The optimum methods of public engagement encompass the McGechan principles: sufficient time, sufficient information and genuine consideration. Undoubtedly time is short and the recovery must proceed quickly. Despite a very tight timeframe, both CERA and the Christchurch City Council gave the Canterbury community a number of opportunities to have an input into both the Draft Recovery Strategy and the Draft CBD Plan. The community was provided with sufficient information to enable constructive dialogue and activities such as the “Share an Idea” campaign lifted people’s spirits as they felt they could be genuinely involved. As noted earlier, the most important time for public participation is at the plan development stage and the authorities made every effort to involve the public. In terms of the Draft CBD Recovery Plan this, of course, came to an abrupt end when the CCDU was established.
Public participation promotes sustainable decisions and is based on the belief that those affected by the decisions have a right to be involved in the decisionmaking. The involvement of the community in the early stages was well managed and was not a frustrating “freeforall” conversation. The Christchurch community comprises many sectors and all had a chance to participate. The desires of each were unique and the Minister, in his task of approving or amending the documents, had to find a fine balance between recognising community engagement and ensuring that the Strategy and Plan will expedite Canterbury’s recovery. It was in everyone’s best interests for the Government to “take the public with it”.
As this article goes to print, it is clear that the preliminary planning stage for the CBD is now over. Once the CCDU was established, public consultation for the inner city’s development came to an end. This has left parts of the Canterbury community, particularly the landowners of targeted properties, feeling frustrated and powerless. While there was no community engagement in the development of the CBD blueprint, the scale of the emergency is unprecedented and the necessity for a timely recovery perhaps demands an element of autocracy.
The negative effects of limited community engagement in a distressed environment will undoubtedly be studied. It is too early to predict whether CERA and the Minister will find that fine balance between community involvement and a speedy recovery. Nonetheless, the High Court proceedings in Independent Fisheries Limited v The Minister for Canterbury Earthquake Recovery209 provide an element of comfort and demonstrate that there will always be a system of checks and balances. The appeal outcome may reverse this reassurance.
209 Independent Fisheries Limited v The Minister for Canterbury Earthquake Recovery [2012] NZHC 1810.
11. CONCLUSION
This article takes a broad look at the underpinnings of the RMA and compares the ethos of this Act and its reforms against the Brundtland concept of sustainable development, most recently reaffirmed at Rio+20. The New Zealand legislation does not strive to include goals of social inequities and global redistribution of wealth and thus does not encompass all elements of the threshold of the original concept. The RMA was enacted as part of a freemarket economic policy and although the 2009 reforms limit public participation they are not inconsistent with the Government’s policy vision in 1991. However, some provisions will deter public participation in RMA processes. Given the optimum methods of public engagement, time will dictate the success or otherwise of streamlining and simplifying the Act whilst still ensuring effective public participation.
The article then considers the overlay of emergency legislation passed following the Christchurch earthquakes. It provides a careful analysis of the CER Act 2011 and observes the delicate balance between expeditious recovery and community engagement. It demonstrates that, despite the extraordinary circumstances, at least in the early planning stages of reconstruction the underlying theories of public engagement were not forgotten. In the longer term, is the Canterbury experience an opportunity “for innovative and creative planning”210 that might lead to a much improved RMA? Nonetheless, in any quest for consistency, speed and quality of planning controls, it should never be ignored, even in emergency situations, that “an opportunity to be heard affords a person dignity and respect”.211
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2012/5.html