Gary Taylor and David Benson-Pope: How to defend the environment

Environmental Defence Society chairman Gary Taylor argues that the Government’s planned changes to the Resource Management Act will create more problems than they will solve. Associate Environment Minister David Benson-Pope responds.

Gary Taylor: Two key aspects of the proposed changes to the RMA should be dropped. First, the bill proposes gutting the role of the Environment Court by doing away with de novo hearings. The court will no longer consider issues afresh except in very limited circumstances. Instead it will become an appeal authority. The amount of procedural litigation will therefore increase dramatically. Council hearings will become longer, more legalistic and less accessible to lay people and outcomes uncertain.

This is changing a system that has been in place for over 50 years and works. The ability to have a fresh hearing before an independent, expert court is part of our resource management approach. Court delays have largely disappeared.

Second, the bill contains provisions relating to infrastructure that are redolent of the National Development Act. An appointed Board of Inquiry, that could be stacked, will make decisions that cannot be appealed to the Environment Court.

This is open to abuse.

Other changes to the RMA are good. Requiring regional and district plans to "give effect to" regional policy statements will strengthen strategic planning. Allowing non-notification decisions to be heard in the Environment Court will speed up resolution of those challenges.

David Benson-Pope: The Resource Management Act is important legislation protecting our environment. But it can be improved by making processes less cumbersome, less costly, and by removing the potential for abuse.

The RMA reform bill improves the council consent process by requiring councillors to be trained and accredited. This will engender a more inquisitorial style of hearing. There will also be pre-hearings to sort out differences before a case is heard. The Government is committed to good local decision-making.

Under the reform bill the Environment Court would become a court of appeal for decisions made at these improved council hearings. I am open to the idea of the Environment Court having a greater role, but decisions already made by local councils must be given weight at the Environment Court and not simply cast aside.

Though rarely used, existing legislation contains a "call-in" process, which involves setting up a board of inquiry to hear large or complex consents. The reform bill creates a set of more appropriate and accessible call-in options. These include funding an independent co-ordinator to ensure processes run effectively or directing an application be heard jointly if more than one council must give consent.

The outcomes of these will be appealable to the Environment Court, except in the case of a full board of inquiry, which will be appealable to the High Court. Gary Taylor: I am pleased to see the minister acknowledging the possibility of changing the bill to maintain a greater role for the Environment Court. No amount of upskilling of councillors will overcome uneven and parochial decision-making. This is inevitable when an assortment of councillors make decisions in over 80 local authorities. Councillors are subject to change every three years and most have no previous experience in resource management.

In contrast, Environment Court members have many decades of specialist knowledge. They have a broad national perspective, hearing cases all over the country. They are not subject to local political influence and pressure. Less than 2 per cent of resource consent decisions are appealed to the court and with adequate resources now in place, the court resolves appeals in a timely manner.

It is important that the court is able to revisit the merits of proposals afresh, to ensure that the outcome represents good resource management and is not tainted by problems with local-level decision-making. I urge the Government to retain the court’s present powers - as well as taking steps to improve first-instance processes. This approach would ensure both business and environmental interests are properly protected. David Benson-Pope: Putting local decision-making into the hands of local councillors is entirely consistent with the philosophy that underpins New Zealand’s resource management approach - decision-making by those closest to an issue. We are improving the quality of hearings processes by making them less adversarial. We will also be introducing an accreditation scheme, so councillors making decisions will be trained and proficient. The system has other safeguards built in, especially in the ability of people to appeal decisions to the Environment Court.

I believe the response of some groups to the proposals have misjudged the intent of the bill. It is about strong environmental protection and supporting local decision-making, while removing unnecessary costs for the participants of consent processes.

That is why the local council role is being enhanced. That is why there are powers to require councils to perform, where now they may have no plans or do not properly enforce environmental protection.

Nothing in the bill is about tilting the playing field in anyone’s favour - it is about improved process. The Government will ensure this intent is carried through, and welcomes suggestions of the select committee to clarify this intent. Gary Taylor: I am heartened to see the minister’s emphasis on the intent of the bill, if the intent is to maintain the role of the Environment Court, improve the quality of local decision-making, avoid a privileged and constitutionally obnoxious track for some infrastructure developers and preserve public participation.

The wording of the bill does not translate this intent into practice. I look forward to seeing a redrafted bill, which does so, in due course.

But please don’t mess with the Environment Court. It and its predecessors have evolved over 50 years into something that works well for business and the community.

Also, it would be good to see something in the bill for the environment. Environmental Defence Society research shows we’re losing our outstanding landscapes to bad development. The RMA needs beefing up to better protect our special places. They are essential to both our economic welfare and our sense of national identity. David Benson-Pope: Protecting our environment is a strategic investment in New Zealand’s future. As New Zealanders, we value our clean environment and the lifestyles we have developed around it.

I want to make clear to those who would like to see the RMA gutted and development proceed at the expense of local communities and the environment - it isn’t going to happen.

But let’s also not pretend that the RMA is perfect. We have reviewed the RMA and come up with a series of sensible changes, which provide more certainty of process for those seeking consents and better decision-making in general.

We are not watering down the RMA’s ability to protect the environment.

Overall, we know practice by local bodies has improved steadily over the last decade but that some councils still fall short. For too long local government has struggled on its own. Changes in the reform bill give a lot more support to local councils, as well as providing tools to make poorly performing councils lift their game.

Despite what some people would tell you, the Resource Management Act is a good one. We are taking action to make it work better for all New Zealanders.

 

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