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Transforming the resource management system : opportunities for change. Issues and options paper [2019] NZAHGovDP 2 (30 November 2019)
Last Updated: 29 July 2020
Transforming the
resource management system:
OPPORTUNITIES FOR CHANGE
Issues and options paper
Published in November 2019 by the Resource Management Review Panel ISBN:
978-1-98-857963-4
© Crown copyright New Zealand 2019
This document is available on the Ministry for the Environment website: www.mfe.govt.nz.
Contents
Kupu Whakataki
Korihi ake ngā manu Tākiri mai i te ata
Ka ao, ka ao, ka awatea Tihei mauri ora
Tēnā koutou katoa
I am pleased to present this issues and options paper for the comprehensive
review of the resource management system.
Much has changed in Aotearoa New Zealand in the period of nearly 30 years since
the Resource Management Act was introduced in 1991.
Serious challenges have
emerged in our ability to respond quickly to urban development pressures and to
house our people in liveable
communities. And we are facing a significant new
threat in dealing with climate change. The natural environment has also suffered
with deteriorating freshwater quality in our streams and
rivers and diminishing biodiversity amongst many concerns.
Our understanding of the implications of our unique relationship between the
Crown and Māori through the Treaty of Waitangi
has developed with many
settlements of Treaty claims being achieved. But much remains to be done to
ensure that the principle of
partnership inherent in the Treaty moves towards an
everyday reality.
Successive governments have amended the Resource Management Act many times since
its enactment and ad hoc measures have been adopted
in an attempt to address the
issues we are now confronting. The time is ripe to undertake a comprehensive
review of the Resource
Management Act and other significant legislation
comprising the resource management system.
The Resource Management Review Panel has been established to undertake that
task. The overall aim is to improve environmental outcomes
and enable better and
timely development in urban areas and elsewhere within environmental limits. It
is an exciting and ambitious
assignment and an opportunity to undertake a
thorough examination of the resource management system. This may well result in
recommendations
for far-reaching reform designed to achieve our ultimate goal of
enabling all New Zealanders to thrive in a healthy environment both
now and for
generations to come.
The Review Panel has already begun to engage with stakeholders, iwi/Māori
and members of the public in preparing this paper.
This engagement will continue
over the coming months as we work to develop a preferred approach to reform.
This paper identifies the main issues to be addressed in the reform process and
offers possible ways in which they might be addressed.
It also poses a series of
questions for interested parties to consider and respond to. We have endeavoured
to adopt a neutral approach
to the issues raised and are very much open to any
constructive suggestions for reform.
We invite comments on this paper no later than Monday 3 February 2020. Hon Tony
Randerson QC
Chair, Resource Management Review Panel
Dean Kimpton, Raewyn Peart MNZM, Hon Tony Randerson QC, Rachel Brooking, Kevin
Prime ONZM, Amelia Linzey
Resource Management Review
Panel
Ka Mua, Ka Muri
To be
successful, we need to design a resource management system that responds to our
distinct environmental, social and cultural
context
The Government has given us the significant task of undertaking a
comprehensive review of the resource management system. This is
an opportunity
to design a system that delivers better outcomes for the environment, people and
the economy.
- The
Resource Management Act 1991 (RMA) revolutionised land use planning and
environmental management in New Zealand. It
was a product of rising environmental awareness in New Zealand and abroad, and
recognised the need to integrate an array of separate
legislation addressing
land use, water, air and soil, among other things. It forged a new legislative
response to Te Tiriti o Waitangi/the
Treaty of Waitangi (the Treaty). It was
also part of a move towards wider deregulation of the New Zealand economy, and
adopted an
‘effects-based’ approach that sought to narrow the role
of planning in the interest of economic efficiency.
- Much
has changed since the early 1990s when the RMA was introduced. As the risks of
climate change and environmental decline have
become more immediate, new
thinking has emerged about how to address the challenge of environmental
sustainability. This emphasises
the need to recognise the complex interactions
between economic, social and environmental systems, the need to plan for
unexpected
events and environmental tipping points, and the need to work within
clear environmental limits.
- As
a country, we have made progress addressing historic grievances through Treaty
Settlements, and begun to better recognise te ao
Māori in wider law and
society. Treaty settlements have, in certain cases, established new approaches
and shared governance
and decision making regarding natural resources. There are
now 70 pieces of settlement, collective redress or hapū/iwi specific
legislation with 76 groups (comprising a mix range of iwi, hapū and various
collectives). It is timely to consider how the resource
management system
responds to this new landscape.
- Finally,
there is increased focus on working towards long-term cross-sector outcomes to
address both issues of intergenerational equity
and wellbeing. An important part
of this is ensuring the resource management system delivers necessary
development capacity for housing
and enables urban land markets to operate
effectively within environmental limits.
- To
be successful, we need to design a resource management system that responds to
our distinct environmental, social and cultural
context. This includes New
Zealand’s physical characteristics and unique biodiversity, the Treaty and
the relationship between
iwi/Māori and the Crown, and the significant ways
we all value and connect with the environment.
- We
approach this review of New Zealand’s resource management system with
these footsteps from our past in view.
A. Te Horopaki o te Arotakenga
The opportunity for reform of the resource management
system
- The
government has agreed to undertake a comprehensive review of the resource
management system. The review aims “to improve
environmental outcomes and
enable
better and timely urban and other development within environmental
limits”. The Cabinet papers setting out the scope and process
for the
review and the terms of reference for the panel are available on the Ministry
for the Environment website: www.mfe.govt.nz.
- As
per the terms of reference, the review has a dual focus: improving outcomes for
the natural environment and improving urban and
other development outcomes. The
underlying causes of poor outcomes are wide ranging: the legislation, the ways
it has been implemented
and how the institutions are arranged. In seeking to
improve these outcomes, the review will need to ensure provisions for central
and local government decision-making, iwi/Māori and broader public
involvement are fit for purpose.
- The
review is expected to resolve debate on key issues, including the possibility of
separating statutory provision for land use planning
from environmental
protection of air, water, soil
This review is intended to reset the policy framework
across the resource management system as a whole.
and biodiversity. It will consider a wide range of options, including whether
important principles in the Resource Management Act
1991 (RMA) should be in a
separate piece of legislation and apply more broadly across the resource
management system. It will begin
enabling a new role for spatial
planning.
- This
review will focus primarily on the RMA itself, but also includes the interface
of the RMA with the Local
Government Act 2002 (LGA), the Land Transport Management Act 2003 (LTMA) and the
Climate Change Response Act 2002 (CCRA). It will
also consider the potential
impact of and alignment of proposals for reform with other relevant legislation
(including but not limited
to the Building Act 2004, Fisheries Act 1996 and
Conservation Act 1987).
- Institutional
reform is not a driver of the review. However, in making recommendations, the
review will consider which entities are
best placed to perform resource
management functions.
Other work underway in government
- The
Government has a broad programme of reform underway to improve the resource
management system and address climate change, freshwater
quality, housing,
infrastructure and other priorities.
- This
review is intended to reset the policy framework across the resource management
system as a whole. It will develop a new framework
that will align with existing
work and may supersede it where appropriate.
Purpose of this issues and options paper
- This
paper starts a conversation about issues to be considered and addressed by the
review and some initial thoughts on possible options.
It seeks comments from
stakeholders and iwi/Māori to inform the development of the panel’s
proposals for reform.
- The
Review Panel will continue to engage with stakeholders and iwi/Māori over
the course of the review. It will also work with
expert reference groups on
certain important topics of interest: the natural and rural environment, urban
and built environment and
te ao Māori.
- The
primary review deliverable is a final report due with the Minister for the
Environment at the end of May 2020. There will be further
engagement with
stakeholders, iwi/Māori and the public on the development of the
Government’s proposals for reform following
the release of the final
report, as shown in the timeline that follows.
- Much
work on reform of the resource management system has been carried out in recent
years. Cabinet has asked the Review Panel to
consider this work as part of its
review.1 This paper draws on this previous work where relevant.
- This
paper identifies a number of possible options for reform. It is neutral with
regard to the options discussed. These should be
thought of as indicative of the
sorts of reform measures that are being considered, rather than the full range
of possible options
or fully developed proposals. Preferred options will be
developed over the coming months.
- The
paper includes a series of questions at the end of each section. These questions
are then summarised in section c at the end of
the document.
- Comments
on this paper are welcomed no later than Monday 3 February
2020.
- This
includes the New Zealand Productivity Commission’s 2017 Better Urban
Planning report, the OECD’s 2017 Environmental
Performance Review, reports
by the Waitangi Tribunal, Kahui Wai Māori and Local Government New Zealand.
It also includes previous
work by the Ministry for the Environment and work by
stakeholders, in particular the Resource Reform New Zealand coalition:
Infrastructure
New Zealand, Business New Zealand, Property Council New Zealand,
Employers and Manufacturers Association (Northern) and Environmental
Defence
Society.
Resource Management Review Panel process
Challenges facing the resource management system
New
Zealand’s natural environment is under significant pressure
- New
Zealand’s natural environment is unique and special. Not only does it
provide us with a place to live, learn, work and socialise,
it is part of our
identity.
- Our
environment is under significant pressure2:
- Climate
change: Climate change is occurring at an unprecedented rate. In New
Zealand, the impacts of climate change (increasing sea levels, droughts,
floods,
fires) are already affecting where people live and how we use our
environment.
- Biodiversity:
Our native plants, animals, and ecosystems are under threat. Almost 4,000 of
our native species are threatened with or at risk of
extinction. In our marine
environment, 90% of seabirds, 80% of shorebirds, and 26% of indigenous marine
mammals are classified as
threatened with or at risk of extinction.
- Wider
environmental decline: Changes to the vegetation on our land are degrading
the soil and water. We are continuing to see significant loss of native
vegetation
and wetlands and the reduction of benefits they provide (eg, flood
and erosion control, water quality, carbon storage). Our heavy
reliance on
surface and groundwater for drinking, domestic, and industrial uses, and
irrigation is threatening the habitat of our
freshwater species, increasing the
concentration of pollutants and ultimately affecting our ability to use it. The
way we use our
land is also putting pressure on our coastal marine area with
sediment and plastics impacting marine habitats and species.
- Degradation
of our natural environment is reducing ecosystem resilience to system shocks
that can radically alter the flow of ecosystem
services, affecting associated
livelihoods and the wellbeing of communities.
Urban areas are struggling to keep pace with population
growth
- New
Zealand is becoming increasingly urbanised. Between 2008 and 2018 our population
increased by 14.7%. Ninety-nine per cent of population
growth is in urban areas.
Growth is expected to continue, with the highest rates in Tauranga, Auckland,
and Hamilton.3
- See
Ministry for the Environment & Stats NZ, New Zealand’s
Environmental Reporting Series: Environment Aotearoa
2019,
Wellington, 2019. Available from
www.mfe.govt.nz and www.stats.govt.nz.
- See
New Zealand Productivity Commission, Better urban planning: Final report,
2017.
The system needs to deliver necessary development capacity
for housing and enable urban land markets to operate effectively within
environmental limits.
People are drawn to cities because they offer the benefits of more job
choices, social and cultural interaction, and higher quality,
more diverse
amenities and services. However, our cities are under pressure with rising urban
land prices and some of the highest
housing costs relative to income in the
developed world. Poorly managed urban growth has also led to increasing
homelessness, worsening
traffic congestion, increased environmental pollution,
lack of transport choice and flattening productivity growth.
- The
social impact of ever increasing housing costs has been significant, in
particular for the most vulnerable New Zealanders. For
example, work by the
Ministry of Social Development shows that housing costs for low income New
Zealanders have doubled as a proportion
of their income since the 1980s, leading
to increased income inequality.4 There has also been falling rates of
homeownership and increased household debt.5 According to the Reserve
Bank, New Zealand’s level of household debt is one of the most significant
risks to our financial
stability.6
- There
have been many drivers for this but some councils, particularly in high growth
areas, are struggling to provide sufficient development
capacity for housing in
regulatory plans and supply enough infrastructure to support urban
growth.
Rapid changes in rural land use have increased pressure on
ecosystems
- In
addition to the pressure in urban areas, rapid changes in rural land use have
increased stress on ecosystems. Between 2002 and
2016 there was a 42% increase
in the proportion of farmland used for dairy, and a decrease in the area in
sheep and beef. There was
also continued intensification of land use and a shift
to higher stocking rates.7
- In
farming areas, water pollution affects almost all rivers and many aquifers
– affecting the mauri of the water, human health
and our ability to swim
and enjoy our water for recreation. Land-based industries are critical to New
Zealand’s current and
future prosperity, and to addressing global
challenges like food supply, biodiversity loss and climate
change.
- Ministry
of Social Development, Household incomes in New Zealand: Trends in indicators
of inequality and hardship, 1982 to 2017, Wellington, 2018.
- Johnson,
Alan, Philippa Howden-Chapman and Shamubeel Eaqub, A Stocktake of Stocktake
New Zealand’s Housing, 2018.
- Reserve
Bank of New Zealand, Financial Stability Report, May 2019. 7 Ministry for
the Environment & Stats NZ, Our Land, 2018.
A transition is needed to achieve sustainable land use, and ensure cumulative
environmental effects are sustainable across generations.
Reasons why the system has not responded effectively
Lack of clear environmental protections
While
a major improvement on the previous system, the RMA has not sufficiently
protected the natural environment.
While a major improvement on the previous system, the RMA has not
sufficiently protected the natural environment. The purpose of the
RMA set the
ambitious objective of sustainable management of natural and physical resources.
However, it suffered from a lack of
clarity about how it should be applied
– taking over two decades for the courts to settle through the King Salmon
case.8 As a consequence of this lack of clarity, as well as
insufficient provision of national direction and implementation challenges in
local government, clear environmental limits were not
set in plans. Lack of
clear environmental protections has made management of cumulative environmental
effects particularly challenging.
Lack of recognition of the benefits of urban
development
- It
is well established that the RMA has not achieved good outcomes for our urban
areas or built environment. A shortage of housing
in New Zealand, and the
perception that RMA processes are overly cumbersome and provide insufficient
certainty for major infrastructure,
has seen a long series of official inquiries
that have identified shortcomings in the performance of the
RMA.9
- Some
argue that insufficient recognition in the purpose and principles of the RMA of
the positive benefits of housing, infrastructure
and other development has
hampered planning for development. The lack of content about these issues left
decision-makers with little
guidance on how to plan for development in urban and
other areas. Infrastructure funding constraints have encouraged rationing of
available land for development in an effort to manage infrastructure cost
burdens.
- Environmental
Defence Society Incorporated v The New Zealand King Salmon Company Limited
[2014] NZSC 38.
- Examples
include the Minister for the Environment’s Urban Technical Advisory Group
in 2010 and the Productivity Commission’s
Better Urban Planning inquiry in
2017.
A focus on managing the effects of resource use rather than
planning to achieve outcomes
Decisions made through the
resource management system have favoured existing users and uses.
The RMA has been criticised for having too narrow a focus on managing the
negative effects of resource use, rather than providing
direction on desired
environmental and development outcomes or goals.10 The RMA is a
framework law that enables rather than directs. It does not explicitly set out
outcomes to be achieved, other than the
high level goal of sustainable
management. Some argue that this has made
forward planning difficult. The RMA’s focus on environmental effects can
also mean the positive benefits of development and
a long-term perspective are
under-emphasised, despite these being core aspects of “sustainable
management”.
A bias towards the status quo
- Decisions
made through the resource management system have favoured existing users and
uses, and as a result have inadequately provided
for future generations, as well
as poorer communities and iwi/Māori. Problems that have exacerbated this
bias include:
- an emphasis of
the RMA on avoiding or remedying adverse effects
- the protection
of use rights, for example in relation to land use planning and the right to
take water
- processes (eg,
legal appeals) that favour the well-resourced
- the application
of ‘permitted baselines’ in resource consent
processes.
- Furthermore,
until recently there has been insufficient recognition of the importance of
proactive and strategic planning in the system.
Over the last decade, some
councils have developed strategic plans and joint spatial plans for their
regions, districts and communities
to help fill this gap.11 Central
government has encouraged this form of planning by requiring Auckland to prepare
a spatial plan, future development strategies
through the National Policy
Statement for Urban Development Capacity, and spatial planning partnerships
under the Urban Growth Agenda.
However, the lack of legal weight and
disconnection with RMA plans means that the full benefits of strategic planning
are not being
realised throughout the system.
- For
example, see Environmental Defence Society, Reform of the Resource Management
System: Synthesis report, 2018.
11. Many of these plans are done
on a voluntary basis under councils’ general powers in the LGA.
Lack of effective integration across the resource management
system
- The
RMA set out to achieve integrated management of natural and physical resources.
It drew together statutory decision making frameworks
for management of land,
freshwater, soil, air, noise and the coastal marine area, among other things.
Despite this, some argue that
New Zealand’s resource management remains
insufficiently integrated.12
- Plans
and decision-making under the RMA, LGA and LTMA all affect one another, but
there is poor alignment between land use and infrastructure
plans, processes
(including public participation) and funding. This results in inefficiencies,
delays and additional costs. Furthermore,
multiple plans and processes can make
it difficult for the public and iwi/Māori to participate effectively. In
addition, the
resource management system has been weak at managing effects
across domains, such as the land and the sea, and cumulative environmental
effects.
Excessive complexity, uncertainty and cost across the
resource management system
- Overall,
the resource management system is unnecessarily complex. This complexity is a
product both of the RMA itself, and its interface
with requirements across the
LGA, LTMA, the Building Act 2004, and wider legislation.
- Considerable
variation across the country creates uncertainty for resource users. Processes
are complex, litigious, and costly, and
frequently disproportionate to the
decision being sought or the risk or impact of the proposal. Matters that should
be addressed
in plans are left to the resource consenting process to resolve,
generating unnecessary uncertainty. There have been successive legislative
amendments targeting aspects of the RMA, and a proliferation of new arrangements
to work around it, such as the proposed Kāinga
Ora Homes and Communities
planning powers, and Special Housing Areas. While the amendments sought to
address deficiencies in the
system, these workarounds have resulted in further
misalignment between legislation.
- For
example, see Infrastructure New Zealand, Integrated Governance, Planning and
Delivery: A proposal for local government and planning law reform in New
Zealand, 2015.
Lack of adequate national direction
The planning system has struggled
to respond to challenges as they have arrived
– in particular the housing crisis, intensification of rural land
use and risk of climate
change.
Many commentators argue that the main problem with the RMA has simply been a
lack of national direction.13 Under the RMA it was envisaged that
central government would set national environmental bottom lines and policies
through national
policy statements (NPS) and national environmental standards
(NES). However, for many years these powers were not exercised. Caroline
Miller
has described this as a failure of the
government “to participate in the co-operative mandate that the RMA
created”.14 It has been
argued that the absence of national guidelines and policies has left local
authorities and the Environment Court “to take bite-sized
pieces rather
than adopt a high level vision”.15
- While
national direction was slow to be developed for many years, since 2013 there has
been a considerable increase in the number
of national direction instruments.
National Planning Standards were also gazetted in April 2019, and will set the
structure of plans,
and some content, including definitions.
- Notwithstanding
this increase in national instruments, taken as a whole the suite of national
direction is not yet cohesive. A lack
of strategic direction across the national
direction programme has flow-on effects for council implementation and the
management
of interactions between instruments. This in turn compromises the
ability of individual instruments to have their intended
impact.
Insufficient recognition of the Treaty and lack of support
for Māori participation
- The
Treaty is an important part of New Zealand’s unique constitutional
arrangements. Better recognising the Treaty in resource
management
decision-making was a driver behind the introduction of the RMA. The Minister
for the Environment at the time of the resource
management policy development
process, Sir Geoffrey Palmer, noted “the new law will be both practical
and just. The principles
of the Treaty form an important component for the
decisions made in this review. The new Resource Management Planning Act will
provide
for
- Others
have argued that even where there has been national direction or even standards,
the rate at which councils have implemented
these directives has been slow and
inconsistent.
- Miller,
C., Implementing Sustainability: The New Zealand Experience, Oxon:
Routledge, 2011.
- Schofield,
R., Alternative perspectives: The future for planning in New Zealand - A
discussion for the profession, commissioned by the New Zealand Planning
Institute, Auckland, 2007.
more involvement of iwi authorities in resource management, and for the
protection of Māori cultural and spiritual values associated
with the
environment”.16 The RMA contains several
provisions that are specific to Māori, including in its purpose and
principles, and its consultation requirements. At the time
of the passing of the
RMA, many Māori were optimistic that they would have a larger and more
meaningful role in resource management
issues.
- In
some areas, Māori participation in the resource management system has
improved over the past two decades. The number of councils
engaged with
Māori, such as through formal consultation, relationship agreements and iwi
management plans has increased. However,
since 1991, no RMA functions have been
transferred to iwi authorities under section 33 of the RMA. Nor have any iwi
authorities been
approved as a Heritage Protection Authority under section 188.
There has been limited use of provisions for joint management arrangements
under
section 36B. Both capability and capacity issues within councils and iwi
authorities and legislative barriers have limited
use of these
provisions.17
- The
Honourable Justice Joe Williams has argued that outside the Treaty settlement
process, the RMA is the most sophisticated attempt
in New Zealand law to bring
together both western and Māori concepts in the way envisaged by the
Treaty. However, he also points
out that the RMA is “not pulling its
weight”. Treaty settlements have been more successful
in
providing for Māori to become partners in decision-making about resources.
According to Justice Williams, this is “a significant
admission of failure
in the RMA itself, since the mechanisms to achieve similar outcomes have existed
in that Act for more than 20
years without being
deployed”.18
Weak and slow policy and planning
- Plans
are regulatory instruments and should be clearly and unambiguously expressed.
Some plans have been poorly drafted and many have
not effectively managed
cumulative environmental effects. There are also poorly designed and
unnecessarily complex rules that have
caused problems in urban areas. The
proliferation of planning documents under the RMA has added complexity and cost,
as both applicants
and administrators must trawl through a multitude of policies
to discern relevant direction. There is also a lack of integration
and alignment
of RMA policies and plans.19
- Ministry
for the Environment, People, Environment, and Decision Making: the
Government’s Proposals for Resource Management Law Reform, Wellington,
1988.
- Waitangi
Tribunal, The Stage 2 Report on the national Freshwater and Geothermal
Resources Claims (Wai 2358 report), 2019.
- Justice
Joseph Williams, The Harkness Henry Lecture: Lex Aotearoa: An Heroic Attempt
to Map the Māori Dimension in Modern New Zealand Law, Waikato Law
Review, Vol 21, 2013.
- See
New Zealand Productivity Commission, Better Urban Planning, 2017.
- Plan
making under the RMA has also been too slow, partly due to the multiple avenues
to relitigate decisions. This means that the
planning system has struggled to
respond to challenges as they have arrived – in particular the housing
crisis, intensification
of rural land use and risk of climate change. In
practice, an elected council will have difficulty changing a plan within their
elected
three year term.
Weak compliance, monitoring and enforcement
- Weak
compliance, monitoring and enforcement (CME) across the resource management
system has undermined rules in plans that protect
the environment. Problems with
CME are rooted in both statutory provisions and institutional arrangements.
- Penalties
for non-compliance are weak in comparison with other commonwealth nations. The
cost recovery mechanisms of the Act are poor,
especially in relation to
permitted activity monitoring and the investigation of unauthorised activities.
Many offences have significant
elements of commercial gain, but recovery tools,
such as civil forfeiture orders, are only rarely used in RMA offending.
Penalties
imposed by the courts at sentence are often dwarfed by the commercial
gain obtained by the offender.
- The
devolution of CME functions to a large number of small local government agencies
has also created a fragmented system. Many local
agencies lack the economy of
scale to properly resource CME and there is evidence from time to time of bias
and conflicts of interest
in implementation. Exacerbating this fragmentation is
a long history of weak oversight and guidance from central government.
- The
fragmented system and limited economies of scale of our councils have held
agencies back from investing in new technologies and
tools. Information
management across the sector is highly variable, and there are poor mechanisms
for sharing data and intelligence
between regulators about offences and
offenders. Few councils have invested in new technologies such as remote
sensing, latent devices,
drones for inspections, or automated reporting
tools.
Capability and capacity challenges in central and local
government
- While
there are some clear problems with the legislation, a significant contributor to
the problems with the RMA has been insufficient
capacity and capability in
central and local government to fulfil the roles expected of
them.20
- Insufficient
resourcing is considered one of the reasons for central government’s
failure to implement national direction. Capacity
and capability limitations
within local authorities is frequently cited as a root cause of delay,
uncertainty and cost. Under-resourcing
has particularly affected the ability of
councils to undertake necessary research and monitoring.
- See
New Zealand Productivity Commission, Better Urban Planning, 2017,
p.400.
Weak accountability for outcomes and lack of effective
monitoring and oversight
- Some
argue that weak accountability arrangements and conflicts of interest have also
contributed to the failure to properly implement
the RMA. For example, the
Environmental Defence Society (EDS) notes “agency capture of (particularly
local) government by vested
interests has reduced the power of the RMA to
appropriately manage effects on the environment”.21 Others
argue there is insufficient control and oversight of resource management
functions by locally elected decision-makers.
- There
is widespread agreement that there is insufficient monitoring and collection of
data and information on the state of the environment,
on environmental pressures
at the local and national levels, and on the performance of the resource
management system itself.22
- Given
both central government and local government have struggled to deliver a well-
functioning system over many years, some argue
that there has been insufficient
oversight of the system to hold both to account for delivering good
environmental and urban outcomes.
- Environmental
Defence Society, Evaluating the environmental outcomes of the RMA,
2016.
- For
example see Ministry for the Environment & Stats NZ, New Zealand’s
Environmental Reporting Series: Environment Aotearoa 2019, Wellington, 2019;
New Zealand Parliamentary Commissioner for the Environment,
Focusing
Aotearoa New Zealand’s environmental
reporting system, 2019; New Zealand Productivity Commission, Better
Urban
Planning, 2017; Organisation for Economic Cooperation and Development,
Environmental Performance Review – New Zealand, 2017.
B. Whaiwhakaaro
- A
generation has now passed since the Resource Management Act 1991 (RMA) was
developed and new environmental challenges have emerged,
in particular for
freshwater, urban development and climate change. This review is an opportunity
to build on innovative thinking
internationally and in New Zealand in developing
new approaches to resource management.
- This
section discusses issues and initial thoughts on possible options for reform of
the resource management system. The options included
are not comprehensive of
all those that will be considered, nor are they fully developed proposals.
Rather they should be thought
of as indicative of the types of reform ideas that
are being considered by the review. We welcome comment on these options as we
develop and refine our proposals for reform.
Issue 1: Legislative architecture
Overview
- The
problems identified with the RMA and its implementation suggest that
reconsidering the legislative architecture of the resource
management system is
required. This section discusses the scope of the RMA itself, while Issue 4
discuses strategic integration across
the resource management system, including
the possible development of an overarching strategic integrated planning statute
and wider
application of important principles in the RMA.
- The
RMA is a broad framework for the management of natural and physical resources.
Some argue that integration of statutory frameworks
for land use planning and
environmental protection under the RMA has led to poor outcomes for both the
built and the natural environment.
For example, in its recent inquiry into urban
planning, the Productivity Commission notes that the built and natural
environments
have different characteristics and require distinct management
approaches.23 According to the Commission, “the natural
environment needs a clear focus on setting standards that must be met, while the
built environment requires assessments that recognise the benefits of
development and allow
change”.24
- Others
argue that the integrated approach taken in the RMA was not the cause of poor
outcomes for our urban areas or the natural environment.
Rather, they point to
implementation problems, such as insufficient provision of national direction by
central government. They also
argue that a move away from integration would
suffer from the difficulty of distinguishing between what should be dealt with
in an
environmental management and land use planning framework
respectively.25
- Notwithstanding
their analysis that the approach taken to the built and natural environments in
the RMA had been unclear, the Productivity
Commission recommended maintaining an
integrated statute, albeit with the addition of separate principles to guide
planning in the
built environment. This was informed by legal advice from Dr
Kenneth Palmer who argued while there has been lack of clarity in the
approaches
taken to regulation of the built and
natural environment, “it is difficult to see any compelling or justifiable
case for turning the clock back pre the RMA and
reverting to the former separate
regulatory statutes”.26
- On
the other hand, Infrastructure New Zealand and others have argued that greater
clarity could be achieved through separate statutory
provision for environmental
protection and
- New
Zealand Productivity Commission, Better Urban Planning, 2017, p.5. 24 New
Zealand Productivity Commission, Better Urban Planning, 2017, p.5.
- For
example, see Sir Geoffrey Palmer and Dr Roger Blakeley’s submission on the
New Zealand Productivity Commission’s Better
Urban Planning inquiry, Draft
Report, 2016.
- Palmer,
K., New Zealand Productivity Commission: Legal issues in the New Zealand
planning system, 2017.
planning for land use and development. This would flow through to different
institutional roles and processes to carry out these
distinct
functions.27
Whaiwhakaaro
- Options
for reform of the legislative architecture of the RMA are intertwined with the
matters discussed in Issues 2, 3 and 4. That
said, some possible options to
consider include:
- Retain
the RMA as an integrated statute with enhanced principles for land use and
environmental management
- Split
the RMA into an environmental management statute and a land use planning
statute
ISSUE 1: LEGISLATIVE ARCHITECTURE - QUESTION
|
- Should
there be separate legislation dealing with environmental management and land use
planning for development, or is the current
integrated approach
preferable?
|
Issue 2: Purpose and principles of the Resource Management Act
1991
Overview
New
Zealand’s natural environment is now significantly more degraded than it
was when the RMA was developed in 1991.
The purpose of the RMA is to promote the sustainable management of natural
and physical resources. The principles of the Act are set
out in sections 6, 7
and 8 as matters of national importance, other matters and the Treaty of
Waitangi respectively (the Treaty of
Waitangi is discussed in a later section).
Differing levels of weight are given to these sections.
- Infrastructure
New Zealand, Integrated Planning, Governance and Delivery,
2015.
There is an opportunity to build on new thinking with
regard to how te ao Māori – the Māori world – might be
reflected in resource management in New Zealand.
As noted above, the RMA has provided insufficient protection for the natural
environment. While the ability of policies and plans
to set firm environmental
limits has been strengthened following the King Salmon decision of the Supreme
Court, the Environmental
Defence Society (EDS) argues “our laws may need
to be more active and directive in terms of when, by whom, and under what
normative
umbrella we impose bottom lines”.28 New
Zealand’s natural environment is now significantly more
degraded than it was when the RMA was developed in 1991. In this context, the
concept of “sustainable management” is
also thought to lack
sufficient focus on improving, restoring or enhancing environmental
quality.29
- A
second criticism of the RMA’s purpose and principles is that they provide
insufficient recognition of and strategic focus
for necessary housing and
infrastructure development. The lack of direction for development in the RMA has
led some to argue that
it is primarily a reactive framework concerned with
managing the adverse impacts of development, and has insufficient focus on the
positive outcomes that can be derived from planning for resource
use.30
- A
review of the RMA’s purpose and principles is an opportunity to build on
innovative thinking internationally and provide for
relevant new resource
management concepts, such as resilience, ecosystem based management and
environmental limits. One example of
a new approach is the United
Kingdom’s Environment Bill 2019-20.31 The Bill requires
long-term targets for environmental improvement to be established, including
specific standards and timeframes.
The Bill also provides for a “net
gain” in biodiversity to be a condition of planning permission. Another is
the Welsh
Well-being of Future Generations Act 2015 that requires Welsh
Ministers to set milestones and show progress towards achieving seven
wellbeing
goals.32
- There
is also an opportunity to build on new thinking with regard to how te ao
Māori – the Māori world – might
be reflected in resource
management in New Zealand. The Ministry for the Environment has worked together
with the Iwi Leaders Group
and Kahui Wai Māori in
- Environmental
Defence Society, Reform of the Resource Management System: Working Paper
3, 2018, p.63. 29 Environmental Defence Society, Reform of the Resource
Management System: Working paper 3, 2018, p.74. 30 For example, see the
Minister for the Environment’s Urban Technical Advisory Group report,
2011.
- The
United Kingdom’s Environment Bill 2019-20 is available here:
https://services.parliament.uk/Bills/2019-
20/environment.html.
- See
discussion in Environmental Defence Society, Reform of the Resource
Management System: Synthesis report, 2018.
recent years to embed Te Mana o te Wai within the legal framework for managing
freshwater resources.33 Included within this is a hierarchy of
management obligations:
- The
first obligation is to protect the health and mauri of nature.
- The
second obligation is to ensure that the essential needs of people are met. This
includes ensuring safe access to drinking water,
and allowing for customary
uses.
iii. The third obligation is to enable other consumptive use,
provided such use does not adversely impact the mauri of nature.
- The
Waitangi Tribunal, Kahui Wai Māori and others have recommended that the
concept of Te Mana o te Wai should be recognised
in Part 2 of the RMA.
- Some
also consider that the purpose and principles of the RMA should have broader
influence and be used to guide decision making under
other resource management
statutes.34 Options for how this might be developed are discussed in
Issue 4 on strategic integration across the resource management
system.
Whaiwhakaaro
- Options
for reform of the purpose and principles of the RMA are intertwined with the
matters discussed in Issues 1, 3 and 4. That
said, some possible options to
consider include:
- Retain
or change the sustainable management purpose under s5(1)
- Retain
or change the definition under s5(2), for example by adding a positive
obligation to maintain and enhance the environment
- Reframe
ss. 5, 6, 7 to more clearly provide for outcomes-based
planning
- Strengthen
ss. 5, 6 and 7 to more explicitly require environmental limits and/or targets to
be set
- Recognise
the need to ensure there is sufficient development capacity to meet existing and
future demands including for affordable
housing
- Recognise
other urban planning objectives
- Develop
a separate statement of principles for the built environment
- Recognise
Te Mana o te Wai, or its underlying principles in Part 2
- Require
national direction on identified topics or methodologies
- Provide
for new concepts to address climate change (discussed
later)
- The
Ministry for the Environment is currently consulting on provision for Te Mana o
te Wai in the National Policy Statement on Freshwater
Management.
- Environmental
Defence Society, Reform of the Resource Management System: Synthesis
Report, 2018.
ISSUE 2: PURPOSE AND PRINCIPLES OF THE RMA - QUESTIONS
|
- What
changes should be made to Part 2 of the RMA?
For example:
- Does
s5 require any modification?
- Should
ss. 6 and 7 be amended?
- Should
the relationship or ‘hierarchy’ of the matters in ss. 6 and 7 be
changed?
- Should
there be separate statements of principles for environmental values and
development issues (and in particular housing and urban
development) and, if so,
how are these to be reconciled?
- Are
changes required to better reflect te ao Māori?
- What
other changes are needed to the purpose and principles in Part 2 of the
RMA?
|
Issue 3: Recognising Te Tiriti o Waitangi /the Treaty of
Waitangi and te ao Māori
Overview
- The
RMA contains several provisions that are specific to Māori and the Treaty.
Section 6(e) requires decision-makers to recognise
and provide for “the
relationship of Māori and their culture and traditions within their
ancestral lands, water, sites,
wāhi tapu, and other tāonga”.
Section 7(a) requires decision-makers to have particular regard to
kaitiakitanga. Section
8 requires decision-makers to take into account the
principles of the Treaty of Waitangi. The RMA also provides for transfer of
functions
and joint management arrangements, iwi management plans, Mana
Whakahono ā Rohe agreements, and for consultation with Māori,
among
other things.35
- Relevant
RMA provisions include: opportunities for transfer of functions (s 33); joint
management arrangements (s 36B); recognition
of tikanga Māori and te reo
Māori at hearings (s 39); consultation provisions in relation to national
environmental standards
(NES), national policy statements (NPS), regional policy
statements (RPS), regional plans (RP), and district plans (Part 5 and Schedule
1); provision for iwi management plans (Part 5); Mana Whakahono a Rohe
provisions (Subpart 2 of Part 5); provisions relating to water
conservation
orders and heritage orders (Parts 8-9).
Treaty settlements over the last 25 years have developed new approaches
and arrangements for management of resources.
As discussed, while the RMA was designed to provide for better recognition
and protection of Māori interests in resource management,
some consider
that it has not fulfilled this promise. The Waitangi Tribunal notes “it is
disappointing that the RMA has almost
completely failed to deliver partnership
outcomes in the ordinary course of business when the mechanisms to do so have
long existed”.36 The Tribunal also argues that Māori
interests tend to be “balanced out” in the
hierarchy of matters that decision-makers must consider in the RMA, and that
lack of resourcing for Māori participation in processes
has limited use of
available tools.37
- There
have been reported difficulties in consultation processes in some places,
particularly where there are multiple iwi, many hapū
and overlapping rohe.
This can cause delay, expense and frustration for councils, Māori and
applicants. This suggests the meaning
of iwi authority and hapū in the RMA
and consultation processes with those groups may need clarifying.
- Other
environmental legislation, such as the Conservation Act 1987, give greater
weight to the principles of the Treaty.38 More recently developed
legislation is also more explicit about what the Crown’s responsibility to
give effect to the principles
of the Treaty in a particular context
entails.39
- Treaty
settlements over the last 25 years have developed new approaches and
arrangements for management of resources and enabled some
iwi to engage more
fully in the resource management system. Often with complementary benefits for
councils and the wider community.
Treaty settlement agreements will be upheld by
this review.
- There
is also an opportunity to build on what has been achieved through recent Treaty
settlements in developing new approaches and
improved partnership arrangements
more generally. Some important examples of Treaty settlements that reflect iwi
understandings of
their relationship to place are those relating to Te Urewera,
Te Awa Tupua/Whanganui River, Te Waiū-o-te Ika/Whangaehu River
and the
Waikato and Waipā Rivers. Some of these provide statutory recognition of
tikanga and kawa for iwi. Others establish
legal personhood for the environment
in those places, with corresponding rights, duties, and responsibilities.
Recognition of legal
personhood is aligned with tikanga and te ao Māori, as
maunga, awa and whenua are seen as part of one’s family. The principles
of
the Treaty are reflected in a management approach that incorporates
representation by iwi and the Crown.
- Waitangi
Tribunal, Wai 262 Inquiry: Ko Aotearoa Tēnei: A Report into Claims
Concerning New Zealand Law and Policy Affecting Māori Culture and
Identity, 2011.
- Waitangi
Tribunal, The Stage 2 Report on the national Freshwater and Geothermal
Resources Claims (Wai 2358 report), 2019.
- This
was discussed recently in Ngāi Tai Ki Tāmaki Tribal Trust v Minister
of Conservation [2018] NZSC 122.
- For
example, see section 12 of the Exclusive Economic Zone and Continental Shelf
(Environmental Effects) Act 2012.
- A
number of other bodies have also been developed outside Treaty settlement
processes to monitor council performance in meeting Treaty
requirements, promote
issues of significance to Māori, and build capability and capacity in the
resource management system.
An important aspect of this is use of
mātauranga Māori. Examples include the Independent Māori
Statutory Board in
Auckland, and the Environmental Protection Authority’s
(EPA) statutory Māori advisory committee, Ngā Kaihautū
Tikanga
Taiao.
Whaiwhakaaro
- Options
for reform of provision for the Treaty and Māori interests and engagement
in the RMA overlap with many of the other issues
discussed in the paper. Some
possible options to consider are set out below. Other options are discussed in
other sections of the
paper.
- Strengthen
the reference to the Treaty in s8
- Remove
barriers to the uptake of opportunities for joint management arrangements in
s36B and transfer of powers in s33
- Make
provision for new approaches and partnership arrangements in the management of
resources, drawing on the experience of Treaty
settlements
- Clarify
meaning of iwi authorities and hapū
- Provide
funding mechanisms to support Māori participation
- Provide
for regular auditing of council performance in meeting Treaty requirements
- Provide
for other bodies to promote issues of significance to Māori and develop
capability and capacity, building on the examples
of the Independent Māori
Statutory Board in Auckland, and the Environmental Protection Authority’s
(EPA) statutory Māori
advisory committee, Ngā Kaihautū Tikanga
Taiao
ISSUE 3: RECOGNISING TE TIRITI O WAITANGI /THE TREATY OF WAITANGI AND TE
AO MĀORI - QUESTIONS
|
- Are
changes required to s8, including the hierarchy with regard to ss. 6 and
7?
- Are
other changes needed to address Māori interests and engagement when
decisions are made under the RMA?
|
Issue 4: Strategic integration across the resource management
system
Overview
There
is currently no consistent framework for spatial planning in New
Zealand.
As noted above, there is poor alignment of land use and infrastructure plans
and processes (including public participation) with the
required funding
mechanisms to support change. In addition, there is poor management of
cumulative environmental impacts across domains.
Better coordination between
central and local government is also needed.
- Greater
alignment and integration could be achieved by agreeing some common principles
that might apply broadly across the resource
management system. One way to give
effect to these principles might be through strategic and integrated planning,
commonly referred
to as “spatial planning”.
- Many
stakeholders and commentators have put forward options for how “spatial
planning” might be incorporated into a reformed
resource management
system.40 Spatial planning would encompass consideration of economic,
environmental, social and cultural wellbeing. It would also need a long-term
time horizon, and a focus on integration of environmental protection, land and
natural resource use and infrastructure decision-making,
including
funding and financing. It could provide an opportunity for Māori to
participate in strategic decision-making about resource
management
issues.
- There
is currently no consistent framework for spatial planning in New Zealand. Some
councils are making progress developing integrated
and long-term spatial plans
without a legislative framework, but there are barriers to achieving their full
potential, including:
- insufficient
legislative mandate and weight, including formal links between spatial plans and
regulatory resource management and funding
plans
- fragmented
governance and decision-making arrangements (within and between local
authorities) and insufficient central government
involvement
- infrastructure
funding constraints and insufficient supporting tools (eg, infrastructure
funding and financing tools) and poor understanding
of the costs and benefits of
growth
- poor incentives
for local authorities to join forces to coordinate, provide for, and fund
infrastructure in order to efficiently respond
to growth and
change
- Examples
include: New Zealand Productivity Commission, Better Urban Planning,
2017; Local Government New Zealand, A 'blue skies' discussion about New
Zealand's resource management system, 2015; Infrastructure New Zealand,
Integrated Planning, Governance and Delivery, 2015.
- insufficient
capability and capacity in central and local government to develop and implement
spatial plans.
- If
a framework for spatial planning is developed, consideration needs to be given
to how current provision for designations might
be aligned with or work
alongside spatial plans.
Whaiwhakaaro
- Options
to provide for strategic integration across the resource management system
overlap with the options discussed in Issues 1,
2 and 3, among others. Possible
options to consider include:
- Create
an overarching strategic integrated planning statute, which sits above the RMA
and other relevant legislation (including the
the Local Government Act 2002
(LGA) and the Land Transport Management Act 2003 (LTMA)). This might
“elevate” aspects
of Part 2 of the RMA, and other important
principles
- Provide
for spatial planning within the RMA with statutory linkages to other relevant
legislation
- Provide
for spatial planning within the LGA with statutory linkages to the RMA and other
relevant legislation
- Provide
for spatial planning at a regional level only (or also at a national level)
- Require
spatial plans for all regions, only for major urban centres, or provide triggers
in legislation when spatial plans would be
required
- Focus
spatial planning on housing and urban growth only, or expand its scope to
include other matters such as environmental protection
and restoration, climate
change mitigation and adaptation, rural land use change and resource management
in the coastal marine area
- Give
spatial plans strong legal weight over plans under the RMA, LGA and LTMA (or
weak legal weight)
- Provide
for spatial plans to be led by local authorities, or jointly developed by a
collaborative process involving central and local
government and Māori
- Provide
for other ways of aligning land use and infrastructure planning processes under
the RMA, and for addressing cumulative environmental
effects
- Consider
how designations might be aligned with spatial plans at the national or regional
level
ISSUE 4: STRATEGIC INTEGRATION ACROSS THE RESOURCE MANAGEMENT SYSTEM -
QUESTIONS
|
- How
could land use planning processes under the RMA be better aligned with processes
under the LGA and LTMA?
- What
role should spatial planning have in achieving better integrated planning at a
national and regional level?
- What
role could spatial planning have in achieving improved environmental
outcomes?
- What
strategic function should spatial plans have and should they be legally
binding?
- How
should spatial plans be integrated with land use plans under the
RMA?
|
Issue 5: Addressing climate change and natural hazards
Overview
- Addressing
climate change and natural hazards are important goals. The Climate Change
Response Act (CCRA) is the main framework for
reducing greenhouse gas emissions
(mitigation), and assessing and responding to risks from a changing climate
(adaptation). The Act
will set greenhouse gas reduction targets and require
future governments to continue these efforts. It will also require the setting
of emissions budgets and the development of a national adaptation plan. This
raises an important question as to how the RMA might
be aligned with the CCRA to
contribute to the national effort to address climate change.
- The
RMA currently has a limited role in climate change
mitigation.
In 2004, the Government removed direct control of greenhouse gas emissions by
regional councils.41 It was thought climate change mitigation was
better addressed nationally, and through the introduction of a price on
emissions. A
price on emissions is now in place through the New Zealand
Emissions Trading Scheme (NZ ETS), albeit with some limitations.
- Sections
70A and 104E prohibit local authorities from considering the effects of
greenhouse gas emissions on climate change in plans
and
consents.
The RMA currently has a limited role in climate change
mitigation.
The 2004 amendments did require councils to consider the benefits of
efficient energy use and renewable energy in decisions. They
also left room for
the introduction of a national environmental standard (NES) in future to allow
for direct control of the discharge
of greenhouse gases, although no such
standard has been introduced.42
- Some
argue that the RMA should be used more broadly as a tool to address climate
change mitigation. While an effective emissions price
is likely to be the best
way to reduce emissions across the economy in a fair and efficient way,
regulation under the RMA may serve
as a useful complement to this approach. For
example, the Productivity Commission points out
that “a single emissions price cannot...reflect the varying range of
co-benefits and co-harms associated with different land
uses” and
additional incentives or regulation to secure benefits or avoid harms are
required.43 Others believe that plan rules and/or consents for
activities which emit substantial quantities of greenhouse gases should consider
the climate change effects in order to prevent additional damage or to agree a
time limited transition.
- Options
might include creating a more permissive regulatory approach for certain
activities that are necessary to facilitate a transition
to a low emissions
economy, such as forestry and renewable energy development. It might also
include use of spatial planning to influence
the way urban areas develop,
decrease the need for carbon-intensive transportation and improve energy
efficiency in the long-term.
Finally, there may also be a case to use regulation
under the RMA to control particular emissions-intensive activities in cases
where
an emissions price is unlikely to be effective.
- The
2004 amendments did require councils to consider the effects of climate change
(adaptation) in their resource management decisions.
The New Zealand Coastal
Policy Statement 2010 included requirements to plan for coastal hazards. The RMA
was also amended in 2017
to provide a stronger framework for management of
natural hazards. Nevertheless, some argue that councils need stronger, clearer
direction on how and when to adapt to climate change and address natural
hazards, and more technical support and information to support
risk assessment
in decision-making. In particular, there is no well- established policy
framework or funding mechanisms for communities
to avoid, accommodate, defend
and retreat from high risk areas over time.44
- Under
s 70B (relating to district plans) and s 104F (relating to resource consents) an
NES standard can be promulgated.
- New
Zealand Productivity Commission, Low Emissions Economy report, 2018,
p.284.
- Jonathan
Boston and Judy Lawrence, Funding Climate Change Adaptation: The case for a
new policy framework, Policy Quarterly, volume 14, Issue 2, May
2018.
Whaiwhakaaro
- Options
to address climate change and natural hazards are contingent on decisions made
with regard to other aspects of the review.
That said, some possible options to
consider include:
Mitigation
- Maintain
the current focus on the NZ ETS as the main policy tool to address climate
change mitigation
- Add
reference to climate change mitigation to Part 2 of the
RMA
- Develop
national direction to encourage the types of activities needed to facilitate New
Zealand’s transition to a low carbon
economy. This includes renewable
energy, carbon capture and storage, uptake of low emissions technologies and
efficient urban form
- Use
“spatial planning” for land use and infrastructure as a tool for
addressing climate change mitigation
- Develop
an NES with controls on greenhouse gas emissions under the RMA. This might be
targeted at particular emissions-intensive activities
for which emissions
pricing is unlikely to be effective
- Require
the Minister for the Environment to develop or amend national direction under
the RMA in response to the carbon budgets determined
by the
CCRA
Adaptation and natural hazards
- Develop
national direction to provide clearer planning restrictions for development in
high risk areas
- Use
spatial planning processes to identify future adaptation responses (in the
context of the national adaptation plan) that connect
with regulation,
infrastructure provision and adaptation funding
- Improve
implementation of risk assessment
- Clarify
what changes might be needed to existing use rights in the context of managed
retreat
- Introduce
new planning tools such as “dynamic adaptive planning pathways” and
other measures45
- Require
the Minister for the Environment to develop or amend national direction under
the RMA in response to the national adaptation
plan developed under the
CCRA
- Ministry
for the Environment, Preparing for Coastal Change: A Summary of Coastal
Hazards and Climate Change Guidance for Local Government,
2017.
ISSUE 5: ADDRESSING CLIMATE CHANGE AND NATURAL HAZARDS -
QUESTIONS
|
- Should
the RMA be used as a tool to address climate change mitigation, and if so,
how?
- What
changes to the RMA are required to address climate change adaptation and natural
hazards?
- How
should the RMA be amended to align with the Climate Change Response Act
2002?
|
Issue 6: National direction
Overview
While
much effort is underway to develop new national direction on a range of issues,
more could be done to ensure central government’s
national direction
programme as a whole is targeted at the right issues, aligned and coordinated,
effective, efficiently developed,
and easy for councils to implement.
The RMA devolves day-to-day decision-making about resource use to local
authorities. Central government can set national policies
and environmental
standards on issues of national significance, to guide how local authorities
manage specific resources to achieve
the purpose of the Act. Under the RMA,
these policies and standards
are collectively called ‘national direction’. They include: NPS,
NES, and National Planning Standards. The Minister for
the Environment is also
empowered to recommend making regulations.
- As
discussed above, many argue that the main problem with the RMA has simply been a
lack of national direction. This has led to unnecessary
duplication of effort across the country. The instruments that have been
developed have also been criticised for being insufficiently
directive and slow
to effect change. In particular, NPS have been criticised for being high level
documents that do not relate easily
to the everyday work of planners. Partly as
a result, local plans have not delivered “sustainable
management”. A particular gap in national direction identified by the
Productivity Commission is how councils should put provisions
relating to the
Treaty into practice.46
- While
much effort is underway to develop new national direction on a range of issues,
more could be done to ensure central government’s
national direction
programme as a whole is targeted at the right issues, aligned and coordinated,
effective, efficiently developed,
and easy for councils to implement.
- The
Productivity Commission recommended central government deliver a core suite of
national instruments to ensure that guidance is
provided on the full range of
matters in which
- New
Zealand Productivity Commission, Better Urban Planning, 2017, p.
13.
central government has an interest.47 This core suite of national
direction might be required by legislation, as is the case currently with the
New Zealand Coastal Policy
Statement. There might also be a requirement for
regular review of this material, to ensure it remains well- aligned and up to
date.
Alternatively, EDS has suggested a harmonised set of national policy
statements be delivered through a single Government Policy
Statement.48 This might better enable strategic direction across the
programme as a whole, and prove easier for councils to translate into lower
level planning instruments.
- Some
issues identified with the consistency of local plans have begun to be addressed
through the recent introduction of National
Planning Standards. These require
plans to be prepared using a prescribed structure and format, mapping and
definitions framework.
So far, the planning standards have not prescribed the
content of plans. However, given the current development of a broader range
of
national direction, more thought could also be given to the use of the planning
standards as a tool for delivery of national direction.
Whaiwhakaaro
- Options
to improve national direction are contingent on decisions made with regard to
other aspects of the review. That said, some
options to consider
include:
- Make
greater use of more directive instruments that are faster to effect change, such
as NES and regulations
- Require
a mandatory suite of national direction, including provision for regular
review
- Require
a mandatory national policy statement on the Treaty
- Deliver
aspects of national direction through a single combined instrument such as a
Government Policy Statement
- Further
develop the national planning standards to support the implementation of
national direction
ISSUE 6: NATIONAL DIRECTION - QUESTION
|
- What
role should more mandatory national direction have in setting environmental
standards, protection of the environment more generally,
and in managing urban
development?
|
- New
Zealand Productivity Commission, Better Urban Planning, 2017, p.266.
- Environmental
Defence Society, Reform of the Resource Management System: The Next
Generation Synthesis Report, 2018, p.8.
Issue 7: Policy and planning framework
Overview
The
quality of plans is variable and they are often poorly integrated with other
plans.
The RMA establishes a hierarchy of policy statements and plans which seek to
give substance to the sustainable management purpose
of the Act with increasing
particularity both as to substantive content and locality. Regional and local
plans serve different roles
in the system. The content of plans reflects both
the functions of regional and territorial authorities
and the specified requirements for regional policy statements, regional plans
(including regional coastal plans), and district plans.
- The
quality of plans is variable and they are often poorly integrated with other
plans.
Recent reviews of the resource management system have found insufficient
protections for the natural environment, and unnecessary
(and poorly targeted)
land use regulation in urban areas.49 One reason for this has been
difficulty implementing the ‘effects-based’ approach intended by the
RMA. There has also
been poor application of cost benefit analysis as part of
the regulatory process, as required under the current section 32/32AA evaluation
report process. The rationale for the specific topics to be covered by different
plans at different levels of local government is
not always easy to understand.
Finally, and as noted earlier, plan effectiveness monitoring by local
authorities has been limited.
- Processes
for plan-making tend to be complex, slow and litigious, which means regulation
has not responded to changes in the environment.
While the Environment Court is
thought to provide a useful check and balance for decision-making by local
authorities, this only
occurs when a party appeals matters to the Court.
- A
number of options have been put forward for improving plans and plan-making
processes. As discussed above, introducing spatial planning
at a regional level
across the RMA, LGA and LTMA might assist with better integrated resource
management. It would also provide an
opportunity to rationalise some aspects of
regional and local planning, as high-level policy matters would be decided
jointly through
spatial planning processes. In addition, better integrated
planning might also be achieved by requiring local authorities to work
together
to produce combined plans, as proposed previously.50 This would also
reduce the number of plans, making the system easier to navigate, and could
address the institutional challenges
faced by many small councils undertaking
the plan making function in isolation and with
- For
example, see the Organisation for Economic Cooperation and Development,
Environmental Performance Review
– New Zealand,
2017.
- Ministry
for the Environment, Improving our resource management system: A discussion
document, 2013, p. 42.
limited resources. Greater status could also be given to iwi management plans,
to better provide for the voice of Māori, as
recommended by the Waitangi
Tribunal.51
- To
provide some independent oversight of local plans and achieve a regulatory
system that more quickly responds to changes in the
environment, the
Productivity Commission, local government sector groups and commentators have
all called for variations of a single
stage plan making process, similar to
those used recently in Auckland and Christchurch. This would provide for a more
robust first
hearing, including use of independent commissioners, as an
alternative to the current Schedule 1 process, and appeals to the Environment
Court.52 The Schedule 1 process itself could also be made more
flexible by requiring processes to be modified depending on the significance
of
the issues to be dealt with. Greater oversight of the quality of local plans
might also be achieved through a role for central
government in approving plans
prior to notification and/or the plans becoming operative. This might be focused
on ensuring implementation
of national direction.
- An
important issue to consider is how a shift to an ‘outcomes’ rather
than an ‘effects-based’ planning system
might be reflected in plans.
This has the potential to provide more certainty about development that is and
is not permitted, reducing
the current strong focus on decision-making through
resource consent processes. However, this might also entail a more prescriptive
and less flexible approach. A second related issue to consider is the role of
requests for changes to plans (commonly known as private
plan change requests),
and the impact of these on both certainty and flexibility of
plans.
Whaiwhakaaro
- Options
to improve the policy and planning framework are contingent on decisions made
with regard to other aspects of the review.
That said, some possible options to
consider include:
- Require
regional spatial plans with effect across the RMA, LGA, and LTMA
- Require
combined plans for a region
- Reconsider
the functions of regional and district councils under the RMA and the effect
they have on the content of plans
- Provide
for an ‘outcomes’ based approach to the content of
plans
- Waitangi
Tribunal, The Stage 2 Report on the national Freshwater and Geothermal
Resources Claims (Wai 2358 report), 2019.
- There
have been a number of models proposed. For example, Judge Skelton proposed an
Independent Hearing Panel with a mix of Environment
Court and local authority
appointees, with a single hearing on merits, the panel making a final decision
with points of law appeals
only; the Auckland Unitary Plan used an Independent
Hearing Panel reporting to the Auckland Council, with limited appeals and points
of law.
- Provide
for a more flexible plan-making process (greater ability to choose steps and
timeframes) so that minor plan changes can be
progressed using a streamlined
process
- Adopt
a “single stage” plan making process or retain the Schedule 1
process with or without modification
- If a
“single stage” process is developed, require:
- the
decision-making body to reach a final decision, or the decision-making body to
make recommendations to the initiating council
- plan
changes to be determined by the Environment Court, with appeal rights limited to
questions of law only to the High Court, or
plan changes to be determined by an
Independent Hearings Panel, with appeal rights limited to questions of law,
either to the Environment
Court, or to the High Court
- further
rights of appeal to the Court of Appeal and Supreme Court with leave or special
leave of the appellate court
- If an
Independent Hearings Panel model is used, require:
- the
members to be appointed by the Minister for the
Environment
- the
members to be appointed jointly by central and local government, with iwi
participation
- Require
draft plans to be approved by a Minister or central government authority prior
to notification, and/or prior to finalisation
- Give
greater status to iwi management plans in Part 5 of the RMA
- Establish
a central mechanism to provide assistance to councils with
plan-making
- Expand
or restrict the ability to apply for a private plan change
ISSUE 7: POLICY AND PLANNING FRAMEWORK - QUESTIONS
|
- How
could the content of plans be improved?
- How
can certainty be improved, while ensuring responsiveness?
- How
could planning processes at the regional and district level be improved to
deliver more efficient and effective outcomes while
preserving adequate
opportunity for public participation?
- What
level of oversight should there be over plans and how should it be
provided?
|
Issue 8: Consents/approvals
Overview
- The
main form of permit established under the RMA is a resource consent. Obtaining a
resource consent to undertake an activity is
the end product of a hierarchy of
planning measures, taking the form of a permission (with conditions) that is
enforceable. A land
use consent is required if an activity infringes a standard,
regulation, condition, or rule in a plan. Consents relating to river
and lake
beds, water use, discharges and the coastal marine area are required by default
unless an activity is permitted by a plan
or a regulation. Consent processes are
often thought to be a choke point in the system; however many of the problems
associated with
consenting are in fact systemic problems.
- There
are around 40,000 resource consent applications each year, the majority of which
are for land use or subdivision.53 Almost all are decided by local
authority officers under
- Data
from the Ministry for the Environment’s National Monitoring System,
2017/18 shows: Approximately 80% of consents are for
land use or subdivision;
96% of consents are non-notified; 95% are decided by local authority officers
under delegated authority
(the rest are decided by independent commissioners,
elected representatives, or the Environment Court); less than 0.5% of resource
consents are appealed to the Environment Court, and 75% of these are resolved by
mediation; 99.7% of consents are granted; the average
cost of a non-notified
resource
delegated authority. The vast majority of consents are non-notified (meaning
there are no rights to make a submission or appeal)
and almost all are granted.
Although conditions are often imposed, there is uneven monitoring of compliance
with them or enforcement
of breaches. This begs the question as to
the
A future system will need to strike the right balance
between process efficiency and public participation.
utility of many consents.
- Reforms
over the last 15 years have focused on improving the efficiency and reducing the
cost of resource consents. However, they
have also led to an increasingly
complex system. One aspect of this is the numerous
processing ‘tracks’ available for resource consents, including a
number of distinct
processes for similar issues.54 Another is the number of possible
activity classes.55
- Notification
decisions have also become increasingly complex, time consuming and contentious.
Prior to 2009, there was a statutory
presumption in favour of notification
– reflecting the general policy of the RMA that the consent process is to
be public and
participatory. This presumption was removed by the Resource
Management (Simplifying and Streamlining) Amendment Act 2009. The notification
provisions were substantially altered again in 2017. The key changes were some
limitations on public and limited notification, primarily
for housing-related
resource consents. A council must have sufficient and reliable information
before determining not to notify a
resource consent application otherwise it
runs the risk of committing an error of law that may make the decision on the
application
vulnerable to judicial review.
- Some
argue that the focus of recent reform on improving process efficiency has come
at the expense of quality decision-making, while
others argue that the focus on
efficiency has come at the expense of access to justice.56 A future
system will need to strike the right balance between process efficiency and
public participation. Some argue that policy
might reconcile these tensions by
better differentiating between significant activities that warrant broad public
engagement, and
minor activities that may not. It will also need to reduce
complexity and cost in consenting processes, while ensuring appropriate
scrutiny
of activities with environmental impacts.
consent in 2017/18 was $3,928; for a limited notified consent it
was $8,288; and for a publicly notified consent it was $25,756.
- For
example, nationally significant proposals, and direct referral processes, are
two pathways available for large scale, complex
or potentially contentious
applications.
- The
activity classes are permitted, controlled, restricted discretionary,
discretionary, non-complying, and prohibited. 56 For example,
see Newhook,
Kirkpatrick & Hassan, Issues with Access to Justice in the Environment
Court of New
Zealand. In Resource Management Law
Association of New Zealand, Resource Management Theory & Practice,
2017, p. 52.
- A
range of other matters also warrant consideration such as the process for
designations, review and variation of consents and conditions,
and the role of
certificates of compliance.
Whaiwhakaaro
- Options
to improve consents and other approvals are contingent on decisions made with
regard to other aspects of the review. That
said, some possible options to
consider include:
- Simplify
the categories of activities (controlled, restricted discretionary, etc) and
processing tracks (nationally significant proposals,
direct referrals, etc)
- Reduce
the complexity of minor consent processes by only requiring certain applications
to conduct a full assessment of environmental
effects
- Establish
a separate permitting process and dispute resolution pathway for residential
activities with localised/minor effects (building
on the current process for
marginal or temporary non-compliance or boundary
activities57)
- More
clearly specify permitted development rights for residential activities
- Simplify
notification decisions by:
- notifying
all activities, but removing automatic requirements for hearings and appeals,
or
- requiring
that plans specify the activities that must be notified, or
- more
clearly defining who is an “affected party” or when “special
circumstances” that require notification
would
apply
- Maintain
a separate consent pathway for nationally significant proposals
- Improve
transparency by requiring all applications and consents issued to be
electronically available to the public
- Facilitate
lower cost consent processes by mandating online systems
ISSUE 8: CONSENTS/APPROVALS - QUESTIONS
|
- How
could consent processes at the national, regional and district levels be
improved to deliver more efficient and effective outcomes
while preserving
appropriate opportunities for public participation?
- How
might consent processes be better tailored to the scale of environmental risk
and impact?
|
57 The Resource Legislation Amendment Act 2017 introduced new
processes to deem certain proposed marginal or boundary activities to
be
permitted. Boundary activities require written approval of the relevant
neighbour(s). Marginal or temporary activities are activities
where the consent
authority has decided there is a marginal or temporary rule breach.
Are changes required for other matters such as the process for
designations?
- Are
changes required for other matters such the review and variation of consents and
conditions?
- Are
changes required for other matters such as the role of certificates of
compliance?
Issue 9: Economic instruments
Overview
- An
important aspect of the “effects-based” approach to environmental
management introduced by the RMA was the intended
greater use of economic
instruments. These can provide an alternative means to improve environmental
quality, incentives to use resources
more efficiently and funds for
environmental remediation. Economic instruments currently provided for under the
RMA include financial
contributions, administrative charges, bonds and resource
rentals for sand, shingle, geothermal energy and coastal
space.58
- In
the years since the RMA was enacted, some progress has been made by central
government in the development of economic instruments
for environmental
management. Two important examples are climate emissions pricing under the CCRA
and the introduction of the waste
disposal levy under the Waste Minimisation Act
2008. Some progress has also been made in the development of local economic
instruments,
most notably a nitrogen cap and trade system designed to improve
water quality in the Lake Taupō catchment. This was developed
as a
partnership between central and local government and iwi.
- Despite
this progress, economic instruments remain underused in New Zealand, in
particular for managing the diffuse pollution of waterways
from agriculture. The
OECD’s Environmental Performance Reviews of New Zealand in 1996, 2007 and
2017 have all called for expanded
use of economic instruments, as did the final
report of the Tax Working Group in 2019.
Whaiwhakaaro
- Some
possible options to consider to improve the use of economic instruments
include:
- Broaden
and strengthen provisions for financial contributions
- Require
mandatory charges for use of public resources, such as coastal
space
- Develop
national direction and guidance on use of economic
instruments
- Offer
councils a broader range of economic tools to support the resource management
system such as emissions taxes, tradable emissions
permits, transferable
development rights, tools for environmental offsetting, and congestion
charges
58 See s 409, s 36, s 108A, s 112, s 64A.
- Allow
or require councils to use revenue from economic instruments to protect, restore
and maintain natural resources
- Enable
easy short and longer term transfers of consents to facilitate markets for
resources
ISSUE 9: ECONOMIC INSTRUMENTS - QUESTIONS
|
- What
role should economic instruments and other incentives have in achieving the
identified outcomes of the resource management system?
- Is
the RMA the appropriate legislative vehicle for economic
instruments?
|
Issue 10: Allocation
Overview
Allocation
under the RMA has generally been on a “first in
first served” basis, with an expectation by users that access rights
will extend over long periods and be renewed.
The RMA plays an important role in allocating access to use some resources.
Two significant areas in which this occurs are permissions
to take, and
discharge to, freshwater and to occupy coastal marine space.59
- The
RMA currently provides a mechanism for allocation through resource consents and
permits. This review will consider whether this
mechanism is fit for purpose. In
relation to freshwater, we are aware that the Government is
separately
considering Māori rights and interests in freshwater allocation, including
the findings of the Waitangi Tribunal in Wai 2358.
Consideration of those
issues is out of the scope of this review, but the expectation is that the
freshwater work programme proceeds
in tandem, so that the Government can be
informed about how any allocation mechanism might function within a reformed
resource management
system, as well as issues relating to Māori rights and
interests.
- Allocation
under the RMA has generally been on a “first in first served” basis,
with an expectation by users that access
rights will extend over long periods
and be renewed.
This approach pre-dates the RMA, and grew out of a situation where there was
little resource scarcity. As we have approached environmental
limits, it has led
to issues with environmental quality, economic efficiency, and fairness.
Extending access to a resource for long
periods has limited the ability of the
management system to respond to new environmental pressures. As resources have
become scarcer
and limits more stringent, new users have been
- Other
resources “allocated” by the RMA include the assimilative capacity
of the environment more generally, navigation
rights on the surface of rivers,
lakes and in the sea, and river and coastal marine area materials (eg, gravel
and sand).
excluded. The “first in first served” approach has not been an
effective mechanism to achieve highest value use of resources.
In some cases,
Māori have been particularly disadvantaged, such as where they own
under-developed land and cannot access water
to improve production
capacity.
- Many
complex issues need to be worked through to develop policy for allocation, and
this detailed work needs to be approached differently
for different types of
resources. The Government is developing freshwater allocation policy through its
Essential Freshwater work
programme. Likewise, it has work underway to improve
management of coastal marine space for aquaculture.
- Given
increasing resource scarcity and a necessary focus on managing within
environmental limits, a question remains as to whether
the RMA should provide a
more specific framework to guide plan making about resource allocation issues at
a general level. This might
provide more clarity and consistency in respect of
allocation decision making by local government. In exploring development of this
framework, it will be important to consider the ability of Treaty partners to
resolve rights and interests in allocation of resources
where applicable. We are
keen to hear views on the general resource allocation framework and any
principles that should be considered
in relation to allocation
mechanisms.
Whaiwhakaaro
- Some
possible options to consider to improve the allocation framework
include:
- Retain
or modify the first in first served principle
- Provide
for new resource allocation methods and criteria to be developed nationally or
locally
- Consider
the role of specific tools in resource allocation such as spatial planning,
transferable rights, tendering or auctioning
- Modify
the duration of consents
- Change
the basis upon which the holder of a consent may obtain a renewal
- Give
greater (or more restricted) power to the consent authority to vary or cancel a
consent
ISSUE 10: ALLOCATION - QUESTIONS
|
- Should
the RMA provide principles to guide local decision-making about allocation of
resources?
- Should
there be a distinction in the approach taken to allocation of the right to take
resources, the right to discharge to resources,
and the right to occupy public
space?
- Should
allocation of resources use such as water and coastal marine space be dealt with
under the RMA or elsewhere as is the case
with minerals and fisheries, leaving
the RMA to address regulatory issues?
|
Issue 11: System monitoring and oversight
Overview
There
is widespread agreement that there is insufficient monitoring and collection of
data and information on the state of the environment,
on environmental pressures
at the local and national levels, and on the performance of the resource
management system.
Many parties, including Government, regulators,
businesses, iwi/Māori and the general public, need confidence and assurance
that the country’s resources are being effectively
and sustainably
managed. As discussed, there is insufficient monitoring and collection of data
and information on the state of the
environment and on the performance of the
resource management system.
This poor evidence base, and lack of use of the data that does exist, affects
both the ability to understand what is occurring in
the environment to make
robust decisions, and to improve the performance of the system. Capability and
resource constraints are again
cited as among the reasons for this shortcoming.60 Issues identified
include:
- monitoring
focuses on operational matters rather than system outcomes
- monitoring of
environmental and urban outcomes has been inadequate
- lack of
capability, data and systems to effectively monitor outcomes
- lack of a
culturally-appropriate measurement system, and involvement of Māori in
monitoring
- inadequate
linkage of environmental reporting data to planning
responses.
Whaiwhakaaro
- Options
for improving system oversight and monitoring overlap with other institutional
design issues discussed in Issues 12 and 13.
Some possible options to consider
include:
- Greater
oversight and monitoring by central government (for example, the Ministry for
the Environment, the Environmental Protection
Authority or a new agency)
- Strengthen
independent oversight and review (for example, by extending the role of the
Parliamentary Commissioner for the Environment
to include an audit
function)
- For
example see Ministry for the Environment & Stats NZ, New Zealand’s
Environmental Reporting Series: Environment Aotearoa 2019, Wellington, 2019;
New Zealand Parliamentary Commissioner for the Environment,
Focusing
Aotearoa New Zealand’s environmental
reporting system, 2019; New Zealand Productivity Commission, Better
Urban
Planning, 2017; Organisation for Economic Cooperation and Development,
Environmental Performance Review – New Zealand, 2017.
- Require
a policy response from central/local government in response to outcomes
identified by environmental reporting
- Develop
an outcomes monitoring system that is culturally appropriate and recognises
mātauranga Māori
ISSUE 11: SYSTEM MONITORING AND OVERSIGHT - QUESTIONS
|
- What
changes are needed to improve monitoring of the resource management system,
including data collection, management and use?
- Who
should have institutional oversight of these functions?
|
Issue 12: Compliance, monitoring and enforcement
Overview
Investments
made in law- making, plan-making and consent processes are undermined if the
rules and conditions imposed through decision-making
are not upheld.
Compliance, monitoring and enforcement (CME) is essential to the resource
management system. Investments made in law-making, plan-making
and consent
processes are undermined if the rules and conditions imposed through
decision-making are not upheld.
- Recent
work by the Ministry for the Environment, local government, stakeholders and
academics has identified a number of
issues with current CME functions.61 Resources and tools for CME
operations are highly variable across the country. Enforcement is expensive and
outcomes may be uncertain.
In some regions and many districts, CME resourcing is
too low. In most councils, consent conditions are not
monitored.
- The
devolution of CME functions to a large number of small local government agencies
has created a fragmented system, with operational
and jurisdictional overlaps.
Lack of economy of scale has also limited local authorities’ capacity to
properly resource CME
functions. In
- Ministry
for the Environment, Compliance, monitoring and enforcement by local
authorities under the Resource Management Act 1991, 2016; New Zealand
Productivity Commission, Toward Better Local Regulation, 2013; Dr Marie
Doole (nee Brown), Ecological compensation: an evaluation of regulatory
compliance in New Zealand; Compensating for Ecological Harm: the state of
play in New Zealand, and; Last Line of Defence. Brown, M.A. 2017.
Last Line of Defence. Auckland: Environmental Defence Society Incorporated.
Brown, M. A., Stephens, R.T., Peart,
R., Fedder,
- 2015.
Vanishing Nature: facing New Zealand’s biodiversity crisis.
Auckland: Environmental Defence Society Incorporated. Compliance and Enforcement
Special Interest Group, 2019. Regional Sector Strategic
Compliance Framework
2019-2024.
some cases, there is a lack of independence in decisions to prosecute. There has
been weak oversight and guidance from central government,
although the EPA has
recently been given an expanded role in CME.
- When
enforcement action occurs, the penalties imposed are sometimes an insufficient
deterrent when compared to the financial advantage
of not following rules and
conditions.
- Some
issues with CME are also the result of problems identified with other aspects of
the resource management system. For example,
consent conditions are sometimes
poorly drafted and difficult to enforce.
Whaiwhakaaro
- Options
for improving CME overlap with other institutional design issues discussed in
Issues 12 and 13, among others. Some possible
options to consider
include:
- Progress
institutional changes for delivery of CME functions:
- retain
devolved system with stronger support, guidance, and performance monitoring from
central government
- provide
for central and/or regional oversight/delivery of enforcement functions
- provide
for escalation of enforcement matters to a central agency, such as the
EPA
- Provide
for strengthened statutory powers and penalties, including for where non-
compliance has resulted in or been motivated by
commercial
gain
- Provide
for improved cost recovery of CME functions (including permitted activity
monitoring and investigation of unauthorised activities)
- Consider
the role of restorative justice in enforcement processes
- Establish
improved data gathering and reporting processes
ISSUE 12: COMPLIANCE, MONITORING AND ENFORCEMENT - QUESTIONS
|
- What
changes are needed to compliance, monitoring and enforcement functions under the
RMA to improve efficiency and effectiveness?
- Who
should have institutional responsibility for delivery and oversight of these
functions?
- Who
should bear the cost of carrying out compliance services?
|
Issue 13: Institutional roles and responsibilities
Overview
Major
institutional reform is not a focus of this review; however some change may be
needed to ensure functions are allocated to delivery
institutions with the right
incentives and capability.
Major institutional reform is not a focus of this review; however some change
may be needed to ensure functions are allocated to delivery
institutions with
the right incentives and capability. Many of the identified problems with the
RMA have simply been due to insufficient
capacity and capability in central and
local government to fulfil the roles expected of them. Previous sections have
discussed failings
in national direction, regional and local planning, system
oversight and compliance, monitoring and enforcement, among other things.
- Many
institutions operate in the current resource management system, including:
- Central
government: The primary actor with the widest scope of policy responsibility
is the Minister for the Environment, supported by the Ministry for
the
Environment. Other central government actors play significant roles, in
particular the Ministers/Departments
of Conservation and Housing and Urban Development, the EPA and the Parliamentary
Commissioner for the Environment.62
- Local level:
At the local level, 78 councils (both regional and city/district in
different circumstances) have primary responsibility for implementing
resource
management policy through the formulation of district and regional plans and
operation of resource consenting systems. Other
actors in the system include
council controlled organisations and development agencies, iwi and hapū,
heritage protection authorities
and regional public health authorities.
- Decision
review institutions: The system also contains a number of decision review
institutions, in particular the Environment Court (with appeal on matters of
law
to the High Court), independent hearings panels, and Boards of
Inquiry.
- Some
institutions have been recently established, such as the New Zealand
Infrastructure Commission, the Climate Change Commission,
Kāinga Ora
– Homes and Communities, and a new drinking water regulator. A number of
other institutions have been proposed
by recent reviews, including a new agency
to appoint and provide administrative support to Independent Hearings
Panels63, a Land and Water Commission to oversee freshwater
policy64, and a National Māori Advisory Board on Planning and
the Treaty.65
- An
important aspect of this review is to ensure that functions in the resource
management system are allocated to the right institutions.
Those functions can
be categorised into the following generic groupings:
- Strategic
planning for environmental outcomes and sustainable development
- Protecting and
promoting Māori interests
- Regulatory
plan-making and consent processes
- Provision of
economic instruments
- Funding of
infrastructure and other public goods
- Establishing and
allocating rights to use public resources
- Resolving
disputes
- Review/appeal of
decisions
- Other
central level actors operating within the system include the Ministry of
Transport and the New Zealand Transport Agency, Kāinga
Ora – Homes
and Communities, the Ministry of Education, other requiring authorities that
deliver essential public services,
other Ministers and government departments,
and Crown research institutes.
- New
Zealand Productivity Commission, Better Urban Planning, 2017.
- Land
and Water Forum, Advice on improving water quality: preventing degradation
and addressing sediment and nitrogen May 2018; Waitangi Tribunal, The
Stage 2 Report on the national Freshwater and Geothermal Resources Claims
(Wai 2358 report), 2019.
- New
Zealand Productivity Commission, Better Urban Planning, 2017.
- Regulatory
compliance, monitoring and enforcement
- Overall system
oversight and monitoring
- Allocation
of these functions should be approached in a principled way. Some guiding
criteria that can assist in this regard are as
follows:
- Subsidiarity:
Ensuring roles and responsibilities are assigned in relation to issue, scale and
complexity, who is affected, and the
capability and capacity to effectively
deliver roles and responsibilities
- Treaty: Ensuring
the principles of the Treaty and relationship between the Crown and Māori
is given due recognition
- Accountability:
Direct accountability to the public is generally appropriate when decisions
involve determining public values
- Independence:
Independence from political decision-making is needed to provide a check and
balance for some decisions, and to provide
technical input and evidence
- Accessibility
and participation: To ensure decision makers are well informed about
impacts
- Mandate and
focus: To ensure various roles and tasks do not cause conflicting organisational
incentives, for example policy –
regulatory – enforcement –
funding – dispute resolution.
- Reducing
complexity: Ensuring processes and functions are efficient and only as
complicated as they need to be.
Whaiwhakaaro
- Options
for institutional arrangements are contingent on decisions made with regard to
the functions of the resource management system
discussed throughout this paper.
That said, some possible options to consider include:
- Central
government agencies playing a greater hands-on role in the system (for example,
through a greater operational role for the
Ministry for the Environment, or an
expanded role for the EPA)
- Pooling
planning resources of central and local government to enhance capacity and
capability
- Providing
for combined decision-making by regional councils and territorial
authorities
- Establishing
a new agency to appoint and provide administrative support to Independent
Hearing Panels
- Providing
for an expanded role for Judges and Commissioners of the Environment Court in
other decision-making bodies such as Boards
of Inquiry and Independent Hearing
Panels
- Providing
for independent oversight of the system through:
- a
greater role for the Parliamentary Commissioner for the Environment or the
Environmental Protection Authority
- establishing
a Water Commission or broader Resource Management Commission
- establishing
a National Māori Advisory Board on Planning and the
Treaty
g. Creation of accountability mechanisms within larger
councils, to enable them to better exercise democratic oversight of planning
departments and council controlled organisations
ISSUE 13: INSTITUTIONAL ROLES AND RESPONSIBILITIES - QUESTIONS
|
- Although
significant change to institutions is outside the terms of reference for this
review, are changes needed to the functions
and roles or responsibilities of
institutions and bodies exercising authority under the system and, if so, what
changes?
- How
could existing institutions and bodies be rationalised or improved?
- Are
any new institutions or bodies required and if so what functions should they
have?
|
Issue 14: Reducing complexity across the system
Lack of
clarity in the purpose of the system has hampered delivery of good environmental
and urban outcomes.
Overview
- Overall,
the RMA and the wider resource management system is unnecessarily complex. Lack
of clarity in the purpose of the system has
hampered delivery of good
environmental and urban outcomes. Decision-making processes and practices are
time consuming and costly.
Broad-based merits appeals in the Environment Court
have added cost and caused delay. Constant tinkering with the system has
added
complexity and generated uncertainty. The Act itself is now close to twice its
original length and more difficult to interpret.
Whaiwhakaaro
- Reducing
complexity requires a systemic approach. The best way to reduce complexity in
the current system is to develop a coherent
package of reform from the options
discussed in this paper. That said, there may also be particular aspects of
current provisions
that generate complexity that have not been discussed. We
would welcome comments about these particular matters.
ISSUE 14: REDUCING COMPLEXITY ACROSS THE SYSTEM - QUESTIONS
|
- What
other changes should be made to the RMA to reduce undue complexity, improve
accessibility and increase efficiency and effectiveness?
- How
can we remove unnecessary detail from the RMA?
- Are
any changes required to address issues in the interface of the RMA and other
legislation beyond the LGA, LTMA?
|
C. Whakarāpopoto o ngā Pātai
|
Questions
|
Issue: 1
|
Legislative architecture
- Should
there be separate legislation dealing with environmental management and land use
planning, or is the current integrated approach
preferable?
|
Issue: 2
|
Purpose and principles of the Resource Management Act 1991
- What
changes should be made to Part 2 of the RMA? For example:
- Does
s5 require any modification?
- Should
ss. 6 and 7 be amended?
- Should
the relationship or ‘hierarchy’ of the matters in section 6 and 7 be
changed?
- Should
there be separate statements of principles for environmental values and
development issues (and in particular housing and urban
development) and, if so,
how are these to be reconciled?
- Are
changes required to better reflect te ao Māori
- What
other changes are needed to the purpose and principles in Part 2 of the
RMA?
|
Issue: 3
|
Recognising Te Tiriti o Waitangi / the Treaty of Waitangi and te ao
Māori
- Are
changes required to s8, including the hierarchy with regard to ss. 6 and 7?
- Are
other changes needed to address Māori interests and engagement when
decisions are made under the RMA?
|
Issue: 4
|
Strategic integration across the resource management system
- How
could land use planning processes under the RMA be better aligned with processes
under the LGA and LTMA?
- What
role should spatial planning have in achieving better integrated planning at a
national and regional level?
- What
role could spatial planning have in achieving improved environmental
outcomes?
- What
strategic function should spatial plans have and should they be legally
binding?
- How
should spatial plans be integrated with land use plans under the
RMA?
|
Issue: 5
|
Addressing climate change and natural hazards
- Should
the RMA be used as a tool to address climate change mitigation, and if so,
how?
- What
changes to the RMA are required to address climate change adaptation and natural
hazards?
- How
should the RMA be amended to align with the Climate Change Response Act
2002?
|
Issue: 6
|
National direction
19. What role should more mandatory national direction have in setting
environmental standards, protection of the environment generally,
and in
managing urban development?
|
Issue: 7
|
Policy and planning framework
- How
could the content of plans be improved?
- How
can certainty be improved, while ensuring responsiveness?
- How
could planning processes at the regional and district level be improved to
deliver more efficient and effective outcomes while
preserving adequate
opportunity for public participation?
|
Issue
|
Questions
|
|
23. What level of oversight should there be over plans and how should
it be provided?
|
Issue: 8
|
Consents/approvals
- How
could consent processes at the national, regional and district levels be
improved to deliver more efficient and effective outcomes
while preserving
appropriate opportunities for public participation?
- How
might consent processes be better tailored to the scale of environmental risk
and impact?
- Are
changes required for other matters such as the process for designations?
- Are
changes required for other matters such as the review and variation of consents
and conditions?
- Are
changes required for other matters such as the role of certificates of
compliance?
|
Issue: 9
|
Economic instruments
- What
role should economic instruments and other incentives have in achieving the
identified outcomes of the resource management system?
- Is
the RMA the appropriate legislative vehicle for economic
instruments?
|
Issue: 10
|
Allocation
- Should
the RMA provide principles to guide local decision making about allocation of
resources?
- Should
there be a distinction in the approach taken to allocation of the right to take
resources, the right to discharge to resources,
and the right to occupy public
space?
- Should
allocation of resources use such as water and coastal marine space be dealt with
under the RMA or elsewhere as is the case
with minerals and fisheries, leaving
the RMA for regulatory issues?
|
Issue: 11
|
System monitoring and oversight
- What
changes are needed to improve monitoring of the resource management system,
including data collection, management and use?
- Who
should have institutional oversight of these functions?
|
Issue: 12
|
Compliance, monitoring and enforcement
- What
changes are needed to compliance, monitoring and enforcement functions under the
RMA to improve efficiency and effectiveness?
- Who
should have institutional responsibility for delivery and oversight of these
functions?
- Who
should bear the cost of carrying out compliance services?
|
Issue: 13
|
Institutional roles and responsibilities
- Although
significant change to institutions is outside the terms of reference for this
review, are changes needed to the functions
and roles or responsibilities of
institutions and bodies exercising authority under the system and, if so, what
changes?
- How
could existing institutions and bodies be rationalised or improved?
- Are
any new institutions or bodies required and what functions should they
have?
|
Issue: 14
|
Reducing complexity
- What
other changes should be made to the RMA to reduce undue complexity, improve
accessibility and increase efficiency and effectiveness?
- How
can we remove unnecessary detail from the RMA?
- Are
any changes required to address issues in the interface of the RMA and other
legislation beyond the LGA, LTMA?
|
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