Martin Williams: RMA reforms - Dr Smith's Frankenstein

Martin Williams

Widespread concerns about ministerial powers to overturn local body planning rules under the latest round of RMA reforms have been expressed by many contributors to this column and in recent letters to the Editor - centred on the issue of genetically modified food.

In my view that problem with the reforms, significant as it is, is symptomatic of a wider malaise.

The RMA has been amended so many times by successive governments it has become incoherent. RMA processes continue to frustrate the public.

They remain a lawyer's paradise. The Act has failed to deliver the environmental outcomes heralded in 1991. This unhappy situation would be compounded by Dr Smith's latest reform proposals. The reforms are simply ugly, and would take the RMA to the point of resembling some awful version of a statutory Frankenstein.

At the outset, the RMA was not only ground-breaking but elegant. As well as being centred in a coherent set of principles directed at promoting sustainable management, the Act was premised on devolved decision-making, and the principle that decisions about resource management are best made if informed by a participative process of public engagement.

It was also intended to be a "one-stop shop" replacing 59 separate Acts dealing with natural resources.

Since enacted however the RMA has been amended many times, with significant reforms in 1993, 1996, 2003, 2005, 2009, 2013 and now proposed through the Resource Legislation Bill recently reported back from the Select Committee. Over that time, new parts of the Act have been bolted in.

The establishment of the Environmental Protection Agency to "fast track" determination of projects of national significance, and a new part of the Act to "kick start" aquaculture are key examples.

Other parts have been surgically removed, a case in point being the original provisions as to hazardous substances and new organisms. The outcome of these reforms, driven by the divergent ideologies of successive governments, is an engorged body of text visibly stitched together to create a statute that was initially 383 pages long, but has now swelled to nearly 700.

The challenge for local authorities to get the balance right between the environmental, economic and cultural imperatives of the legislation was difficult enough. But in making the attempt over the past 26 years, they have had to stagger through these successive reforms, whereby just as one begins to understand how the Act can be made to work effectively, the requirements change yet again.

Central government direction on how to strike the balance had also largely been lacking for nearly two decades of implementation.

To be fair, over the past three terms of a National led government we have seen more by way of central government direction and policy development, in the context of fresh water management in particular.

However, despite an exhaustive collaborative exercise progressed through the Land and Water Forum over several years, and the introduction of the National Policy Statement for Fresh Water Management in 2011, many remain underwhelmed with where we have arrived in that setting.

Over that period, this same administration has introduced a number of supplementary or parallel sets of legislation, bypassing the RMA and undermining its "one-stop shop" conception.

These include the "bespoke" processes set for the Christchurch Replacement District Plan and the Auckland Unitary Plan. In addition, there is the Special Housing Areas legislation, and we now have in prospect the establishment of Urban Development Authorities. While there are undoubtedly other drivers in the Christchurch and Auckland contexts, the basic assumption behind these reforms is that we should blame planning rules or "RMA inertia", and not our policy settings around immigration and bank lending practices, for the present housing affordability and supply crisis.

The Auckland Unitary Plan process could best be described as brutal. It was only the very well-resourced corporate and institutional stakeholders that survived. The general public, individual submitters and community groups were quickly burnt off through the unrelenting breakneck pace of the submissions and hearings process. Under the Resource Legislation Bill currently before Parliament, these "bespoke" plan preparation process could well become mainstream, the new normal.

Rights of appeal to the Environment Court for both plan preparation and resource consent applications would be substantially eroded. The ability of the Minister for the Environment to determine the preparation and content of local government planning rules would conversely be increased.

It may rather sound like the turkey voting for Christmas here, but as recommended by the Productivity Commission in its February 2017 report, I think it is time to start again. The Resource Legislation Amendment Bill should be scrapped.

Instead, we need more holistic, fundamental and visionary reform at the level revealed by Geoffrey Palmer at the conception of the RMA. We need resource legislation that is comprehensive, better integrates land use planning with provision for infrastructure, and embraces the full policy response to the all-important issue of climate change.

The legislation should enable the setting of sensible bottom lines so that industry and the economy at large are clear what the regulatory settings are.

Fewer, simpler, clearer and more effective rules are required with less discretion and "planning clutter". Meaningful public engagement with decision making driven more by scientists than lawyers would be the ideal.

Martin Williams is a barrister specialising in local government and resource management law, based in Napier.

Views expressed here are the writer's personal opinion, and not the newspaper's. Email editor@hbtoday.co.nz.