A watered down model

By Geoff Cumming

Conservationists have had it too easy, says the Government, which blames the Resource Management Act for holding back economic development. But its latest wave of reforms have even some business leaders worried. Geoff Cumming investigates

Critics say beautiful New Chums Beach on the Coromandel could have faced more intensive development under the rewritten law. Photo / Paul Estcourt
Critics say beautiful New Chums Beach on the Coromandel could have faced more intensive development under the rewritten law. Photo / Paul Estcourt

Mining on conservation land, deep-sea oil drilling, subdivisions on unspoilt coastline, cranes in suburbia - they bring protests on the streets and rouse neighbours from their burrows. But in the end, it is not placards or petitions that decide the fate of most development projects but a handful of words.

The guiding principles in the Resource Management Act and the weight placed on them by courts and council planners is often critical to whether development projects go ahead.

On the top tier sit things we value most - outstanding landscapes, significant habitats, pristine coastline, lakes and rivers and other "matters of national importance" that should be protected or preserved from "inappropriate" development, the act says.

Next tier down sit "other matters" - things like ecosystem values, amenity values and efficient resource use.

The Government says these principles are weighted too much in favour of environmental protection, not enough in favour of growth.

In its latest rewrite of the RMA - the third in its tenure and the 18th amendment in the act's 22-year history - it is targeting the words which lie at the core of the act, and much more besides.

Many are "process" changes aimed at the delays, added costs and restrictions developers say have shackled their dreams and our economic growth almost since the act's inception. Even greenies aren't arguing with changes aimed at streamlining processing and speeding-up consents including a 10-day deadline on processing minor consents, fewer plans and greater national consistency in a bid to increase clarity and certainty.

But in targeting the act's core principles and proposing greater Government involvement in local planning - including specifying the outcomes to be achieved in plan changes - even business types fear the Government is going too far.

A draft bill due to be introduced in the second half of the year is expected to be closely based on a discussion document that has drawn fire from not just environmental groups but the Employers and Manufacturers Association, the NZ Law Society, former Prime Minister Sir Geoffrey Palmer (an architect of the 1991 legislation) and the Parliamentary Commissioner for the Environment. But the Government looks unlikely to heed their advice, regarding the RMA in its current form as a major barrier to its goals of economic growth and jobs through infrastructure projects such as water storage and mineral exploitation and on tackling the housing supply/affordability crisis in our biggest city.

Causing most fuss is the intention to end the "hierarchy" between matters of national importance and other matters, requiring decision-makers to give all objectives equal weight - an approach environmentalist Guy Salmon likens to "squashing a wedding cake into a pancake".

The Government also plans to add some principles of its own: "the efficient provision of infrastructure" and "the efficient functioning of the built environment" with specific mention of land availability for urban development.

Both the Law Society and the EMA fear removing the hierarchy and watering down matters of national importance, far from producing clarity and certainty, will throw interpretation of the act back into confusion. Through 20 years of case law, courts and councils have gained a fair idea of how to apply the hierarchy of principles to plan-writing and resource consent decisions. Developers are far more concerned about the process delays and costs, and the Property Council says previous and current reforms have improved things significantly.

Guy Salmon, of sustainability group Ecologic, says the Government is entitled to add economic objectives to the act's core principles. But placing all objectives on equal footing could lead to widespread variation in decision-making and legal challenges.

The EMA, though applauding the process changes, fears a fresh wave of drawn-out litigation and test cases. These could nullify any gains from the reform, it says in a submission urging the Government to keep in mind the goals of clarity and predictability and "reduce costly relitigation of national matters at a local level".

It also fears ministers will intervene in local decision-making based on "untoward advice" from parties seeking commercial advantage.

The act's core principles have helped to determine a number of famous conservation battles. Environmental Defence Society chairman Gary Taylor says the ability to head-off subdivision of pristine coastal areas - such as Ngaiotonga, south of Cape Brett, and New Chums beach on the Coromandel Peninsula - would be weakened. He says the changes could also undermine collaborative work through the Land and Water Forum to set limits on discharges into rivers and streams.

Forest and Bird is drawing on the principles to fight an open cast coal mine on the Denniston Plateau near Westport. In 2009 the provisions were behind the Environment Court's rejection of the Project Hayes windfarm proposal in central Otago. The court agreed the Lammermoor Range was an outstanding natural landscape which deserved protection.

Fish and Game says the proposals will make it harder to oppose water storage schemes which threaten ecologically important habitats or water quality, such as schemes currently planned in central Hawkes Bay, Wairarapa and Canterbury. The planned changes require councils to specify significant habitats and other things worthy of protection, a huge logistical exercise. Neil Deans of Fish and Game says defining what "significant" means could be a fraught exercise. "Until that happens it throws in a lot of uncertainty. It could make it very difficult for decision-makers to work out what to provide for."

"The allegation that the RMA is preventing things happening is entirely wrong. Large-scale infrastructure gets consented now - the ministry's own figures show less than 1 per cent of applications are turned down."

The planned new objectives on infrastructure and the built environment, including land availability, are obviously aimed at Auckland, where Government measures to tackle housing supply and affordability threaten to undermine the Auckland Council's blueprint for growth management, the draft unitary plan.

Housing Minister Nick Smith says the RMA and a "strong nimbyism culture" have combined to push up house prices, contributing to the city's housing affordability and supply crisis. Smith says objections by "wealthy lifestylers" insisting on high-quality on greenfield sites on the urban edge and by residents in established suburbs have prompted councils to impose tough conditions, making section and house prices too expensive.

The Government has already introduced a bill to establish special housing areas in Auckland, allowing district plan rules to be short-circuited. Smith has also warned that Aucklanders may need to sacrifice quality for affordability. The RMA reform seems designed to help - proposing to remove "amenity values" from the list of section 7 matters. This objective gives councils clout to push for good design, sunlight, open spaces in higher density developments.

Despite the heat, Environment Minister Amy Adams is adamant the reforms need to go to the act's core principles. They are fundamental to planning and meant to guide more than just environmental protection. she says. Adams acknowledges removing the "weighting" from the principles could lead to inconsistency and litigation but the need for an "adjustment period"is no reason to avoid change. The Government is following the advice of highly respected practitioners who don't believe legal chaos will erupt, she says.

Argument over what constitutes an outstanding natural landscape or similar feature of national significance has led to many costly court cases and courts should not be forced into making value judgments, she says. "If councils are going to say 'this place is so special it shouldn't be looked at for development' they need to specify what the criteria are."

Adams says changes will bring consistency. She and other ministers blame the Auckland Council and its predecessors for contributing to the housing supply shortage with urban containment policies. "Most people agree the planning process takes too long and causes uncertainty about what we can and can't do. Plan-making has to be more robust and contain a higher level of detail."

Once that's done, she forecasts fewer delays and less time arguing in court.

- NZ Herald

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