Commissioner calls for rethink of RMA

By JIM EAGLES

Business complaints that the working of the Resource Management Act opens them up to extortion come as no surprise to the Parliamentary Commissioner for the Environment, Dr Morgan Williams.

In a 1998 report the commissioner expressed concern at the growth of what he calls "side-agreements" - in which potentially affected parties give their written consent to a resource application in return for "financial or non-financial incentives" - but his recommendations to the Government to deal with the problem were ignored.

Such agreements have been an increasingly common feature since the act came into force 11 years ago because, as Williams puts it, "the act basically sets that potential up".

As parliamentary commissioner, his concern is not so much that businesses - and others - may be blackmailed into paying to get rid of potentially costly and time-consuming objections.

Rather it is that paying people money to go away does nothing to deal with the environmental impact of a development proposal.

"It's a double whammy," he says. "It puts a cost on the system and it doesn't achieve the primary goal of the legislation of protecting our natural capital."

After years of studying the RMA in action, and dealing with the scores of complaints about the act which come into his office, Williams does not agree with the Government stance that most problems will be solved simply by speeding up the processing of those cases which go to the Environment Court.

"We've increasingly got to the view that it's not now simply a matter of tinkering with the RMA and speeding up the process and so on ... There are much wider issues involved here."

What is needed, in his opinion, is a fundamental look at how best to meet the original aim of achieving sustainable development.

"To expect one piece of legislation which was passed in a mould of thinking now 10-15 years old to resolve all the issues of development is a mistake," he says.

"Basically it's time to stop trying to make a silk purse out of a sow's ear."

One issue which certainly needs to be looked at, he agrees, is the clear encouragement in the RMA for someone seeking a resource consent to try to reach an accommodation with those affected.

Former Environment Minister Simon Upton, who introduced the act, freely acknowledged at the time that one of its aims was to create a market for "lost property rights".

"Why force councils to intervene if individuals can sort things out amongst themselves," he asked, "for example, if one neighbour is happy to pay for a hedge to screen an unsightly shed?"

But Upton also accepted that "the principle becomes less desirable if allegedly affected parties hold developers to ransom by claiming sums of money disproportionate to the inconvenience they will suffer ...

"When applicants are forced to become unwilling parties to a deal (because the alternative regulatory process seems worse), there will be cries of extortion."

Unfortunately, there were early signs that demands for sums of money were likely to be more common than environmental solutions.

Judge John Treadwell, formerly of the old Planning Tribunal and now of the Environment Court, told the 1994 conference of the New Zealand Planning Institute that "resource consents can to a degree be bought ... "

Papers produced at the time for the Resource Management Law Association and the Business Roundtable agreed that "the practice of purchasing neighbours' approvals for development proposals is now widespread".

Brendan Gleeson, then a lecturer in geography at Otago University, surveyed senior local body planners and concluded: "The data certainly show that compensation markets are a reality in several of New Zealand's largest urban areas and there is good reason to believe that the purchasing of consents by this means is pervasive."

A 1995 investigation by the previous Parliamentary Commissioner for the Environment uncovered, among other things, a document which "showed an affected person seeking a payment of $10,000 to give written approval for a resource consent application".

In his 1998 follow-up, Williams looked into 22 cases of side-agreements and decided "there is enough uncertainty over the potential environmental management impacts of side-agreements with affected parties to conclude they should not be ignored".

As a first step he recommended that local bodies and the Ministry for the Environment should seek to identify the existence of side-agreements and their impact.

In addition, he urged local bodies to look closely at the environmental effects of any proposal, regardless of whether those affected may have given their written consent.

Those recommendations, he said, had been ignored. But, in any case, the commissioner now thinks more fundamental change is needed.