Bill opponents talk “shambles”, not ideology

Opposition to the latest Resource Management Act reforms is less about ideology, more about competence, practicality & effects on process.

The Resource Legislation Amendment Bill scraped through its second reading in Parliament yesterday by a 2-vote majority, 61-59, courtesy of Maori Party support.

Building, Construction & Environment Minister Nick Smith has promoted the bill’s value, particularly in addressing Auckland’s housing shortage.

The rest of Parliament’s parties, however, reject that basis for the bill and criticise the bill’s structure.

Act MP David Seymour commented: “And you thought RMA reform couldn’t get any worse. The latest Resource Management Act reform won’t be any more effective than the previous 18 reforms to the act.

“Nick Smith is dreaming if he thinks the worst of RMA negotiations are behind him. The consensus from across the political spectrum and from submitters is that the proposed reform is a shambles, adding complexity instead of cutting bureaucracy.

“Our housing shortage is bad enough as it is. Adding more iwi consultation, cost & complexity to the development process would be disastrous for prospective homeowners. Therefore Act cannot support this bill.”

Mr Seymour said that, post-election, “a stronger Act Party will make National commit to fundamental RMA reform that simplifies processes, values property rights and gets houses built.”

Labour says housing crisis assertion wrong

The Labour Party said, in its select committee minority view: “The assertion that the bill is needed because the RMA is the cause of the Auckland housing crisis is wrong, and is no justification for this flawed bill. The following table shows that more new houses were consented in Auckland & New Zealand in 2004 than in 2016. The RMA was in force throughout.”

Labour continued: “The very broad range of submitters opposed to the bill included Local Government NZ and a great many regional & district councils, major land developers including Fulton Hogan, major corporates including Fonterra, infrastructure owners including airport & quarry owners, all environmental non-governmental organisations, the NZ Law Society and numerous others.

“Even amongst the minority of submitters who supported parts of the bill, many used guarded words like ‘we support the intent of the bill’ before criticising much of its detail.

“The bill, if passed, would add complexity to the Resource Management Act 1991 and make it less effective and more expensive to use, rather than better. Legitimate complaints by submitters include:

  • The draconian ministerial regulatory powers to override plans and control consents, and to limit rights of participation. These are tantamount to a return to the National Development Act 1979, and are on the spectrum of the patently excessive regulation-making powers abused under the former Economic Stabilisation Act 1987
  • The power to standardise plan formats & definitions inappropriately extends to the content & substantive provisions of plans
  • The rule-making powers of the minister are also far too broad
  • These 3 forms of ministerial powers are so poorly constrained and patently excessive as to be constitutionally outrageous
  • The bill also overrides – and allows the minister to further override – local & district council functions in such a broad & fundamental way that it overturns the traditional division of power & roles between central & local government
  • The limits to public notification & participation, including on the subdivision of land, are wrong. Those concerned include land developers, and the owners of existing infrastructure concerned about reverse sensitivity effects on their operations. Many submitters said that earlier changes to notification have worked in recent years, and that further change is unnecessary
  • The department said the regulatory powers that can limit rights of participation are intended to apply in urban areas, but the sections as drafted also apply to regional councils and could be used to stop people advocating against pollution of rivers
  • Water conservation orders are undermined
  • New provisions introducing unreasonably short time limits for some council processes will have the unintended consequence of councils making more activities discretionary rather than controlled. Overall this will complicate & delay consent applications rather than speed them up
  • The codification of collaborative processes is unnecessary, wrong in its detail and adds further complexity to the RMA
  • Plan-making processes are curtailed, with insufficient safeguards to ensure that single-step processes are fair & robust when appeal rights are abrogated
  • Appeal rights are curtailed, to the detriment of adversely affected private parties, councils, communities & the environment
  • The important experience & wisdom of the Environment Court is lost from many decisions
  • Many changes introduce more complexity to the RMA, through convoluted decision-making criteria & extra process alternatives. The multiple flow diagrams helpfully produced by the department to assist us illustrated how this bill makes the RMA processes more complex
  • There are a myriad other changes to the RMA & other acts being amended by the bill, many of which are wrong.

The Labour Party concluded: “Some of the changes proposed to national guidance through policy statements & environment standards are appropriate, but others are unnecessarily complex and will give rise to less consistency, not more.”

Greens’ analysis an indictment of ministerial & National performance

The Green Party – regarded by many in mainstream business as a fringe outfit to be disparaged – presented an analysis in its minority view which was an indictment of ministerial & National Party performance.

The Greens said: “The Resource Management Act is a crucial foundation of New Zealand’s environmental law & planning system. Changes to it should be based on sound analysis & evidence and have broad cross-party support so they are enduring. The bill has neither. Many of the changes appear driven by ideology & anecdote, rather than robust analysis & evidence.

“The bill attracted 647 unique submissions & 94 form-style submissions, many of them critical of its fundamental aspects. Many included detailed technical analysis of the bill’s clauses & their implications, and represented a significant investment of time & expertise by submitters.

“Resource users such as Fonterra, quarry operators, and infrastructure operators such as airports made similar points in opposition as environmental interests such as Fish & Game NZ, the Environmental Defence Society, and Forest & Bird.

“Federated Farmers, for example, described the proposed ministerial regulation-making powers as ‘excessive’ and the provisions which allow central government to intervene directly in local council plans as ‘heavy-handed’.

“Sir Geoffrey Palmer, presenting evidence for Fish & Game, described the regulation-making powers which would override the provisions of regional & district plans as a ‘constitutional outrage’. ‘Due process is replaced by executive fiat.’”

The Green Party said the bill’s changes put executive power & individual property rights ahead of community & environmental wellbeing: “They insert new processes for national direction, plan-making, consideration of land-use & other activities and public notification ,while previous changes in 2013 are still bedding in. The changes emphasise fast decision-making ahead of good outcomes. “The bill is likely to make the RMA & its implementation more complex & litigious, and increase costs for councils & users of the act.

“Limits on rights to appeal council decisions to the Environment Court restrict access to justice and the court’s ability to be a guardian of the RMA’s purpose of sustainable management and a check on poor decision-making.”

The Greens’ submission continued with extensive detail on the committee process, ministerial powers, national direction & plan-making before traversing more ideological issues such as public participation, the permissive approach to subdivision & residential activities, fast-track consenting, and the other acts of Parliament affected by the proposed amendment.

The party’s minority view concluded: “The bill is not fit for purpose. It significantly increases ministerial powers while removing or restricting basic rights of public participation. It will expedite development activities with few environmental safeguards and scant consideration of sustainable management. The bill puts private rights & development ahead of the public interest and environmental & community wellbeing. It should not proceed.”

Links:
Select committee’s commentary and the revised bill
Nick Smith booklet, 26 November 2015: The second phase of Resource Management Act reform

Related story today:
RMA reform bill scrapes through second reading

Earlier stories:
6 March 2017: RMA amendment back for second reading
10 November 2016: National gets Maori agreement to advance RMA reforms
14 March 2016: Council says Government approach wrong on resource management reform
27 November 2015: RMA reform introduced

Attribution: Ministerial & opposition releases, select committee report.

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