The Environmental Defence Society has updated its guidance on the Resource Management (Simplifying & Streamlining) Amendment Bill after taking advice from its technical advisory group of experts.

Submissions on the bill close on Friday 3 April with the Local Government & Environment Select Committee.

Both the phase 1 (current) & phase 2 (proposed) Resource Management Act amendments will be the focus of the society’s national conference – Reform in paradise: threat or opportunity, at the SkyCity Auckland Convention Centre on Monday-Tuesday 8-9 June.

2 of the contentious key issues on which the society has new advice:

1. Reducing appeal rights on plans:

On a plan matter, a party can only appeal a council’s decision on a point of law. This means a party cannot contest the merits of a council’s decision on a plan matter in the Environment Court. However, a party can apply to the court to extend the scope of any appeal on a plan matter if:

(a) the decision has a significant impact on existing property rights

(b) it fails to give effect to part II of the RMA; or

(c) it’s unclear in meaning or effect.

Such a change will increase costs & delays through more interlocutory procedures, will reduce the accessibility of the court to interested parties and, most importantly, will substantially reduce the quality of resource management decisionmaking. Reasons for this include:

* Without the ability to appeal a council decision on its merits to the Environment Court, public participation in plan appeals will be substantially reduced
* Without the ability to appeal plan matters on the merits, council decisions will lead to more lower-quality plans being made. The Environment Court is a specialised court with considerable expertise in determining resource management cases. This can be contrasted to local councillors who are subject to a 3-year election cycle, are focused on local issues and frequently have little experience in planning. Local councillors, with these limitations, should not be in a position of final decisionmaker
* The court is an independent body and is not subject to political influence, whereas local councillors are
* The Environment Court provides a higher level of consistency to plan making and ensures a national perspective is applied to a wide range of cases
* Without cross-examination at council hearings, decisions will be made without proper testing of evidence. This will increase the number of flawed decisions & resultant judicial review of decisions
* The process at council hearings will become far more formalised and require professional input. This increase in formality of hearings will deter public participation in the process
* No legal aid is available for council hearings. Under the proposed amendments, parties would be required to present all their evidence at the council hearing and would probably need to engage legal counsel. Members of the public, community groups & environmental non-governmental organisations will struggle to participate at this level without financial assistance
* The proposed amendment will result in plan-making processes becoming bogged down in legal challenges as to whether the appeal falls within the 3 categories listed above, and is therefore able to challenge the merits of a decision
* To determine whether an appeal fails to give effect to part II of the act, the Environment Court will have to hold a hearing and hear evidence on the matter. In effect, this means the court will be conducting pseudo-hearings on the merits of appeals
* There will be delays if the Environment Court declines an application to extend the scope of an appeal and that decision is appealed to higher courts
* Much time, effort & expense will be spent on these procedural issues rather than on the merits & substance of the case. This will not simplify & streamline the plan-making process. Nor will it result in better environmental outcomes for the environment.

2. Removing non-complying activity status

This means each local authority will have to undertake a plan change or variation to remove non-complying activity status from the plan and replace it with another activity status, with any associated changes in assessment criteria.

3 years after the commencement of the act, activities still referred to as non-complying will automatically be treated as references to discretionary activities.

It is not necessary to remove non-complying activity status from the bill. This amendment will result in a substantial amount of money & time being spent unnecessarily on changing plans and will not result in positive environmental outcomes. Reasons for this include:

* The reasons for removing the non-complying activity category are not clear from the published information available
* In a strategic sense, the non-complying category is helpful in establishing a clear & transparent bottom line. It is an important category that sets up the presumption against granting consent to an activity. Removal of the activity status will weaken plans unnecessarily
* Non-complying activity status is now well embedded in plans. Changes to plans would not only be required to activity tables, but also to objectives, policies & assessment criteria throughout each plan
* A choice will need to be made to change the non-complying activity to either a discretionary activity or a prohibited activity. The latter will be fraught with section 32 issues and will be hard to justify. Therefore, the discretionary route is likely to be the preferred activity category
* Councils will need to develop discretionary activity status policies & criteria that essentially provide for an upper limit beyond which effects are regarded as being inappropriate (or an environmental bottom line). In effect, this will act as a non-complying activity substitute
* Once in place, these new provisions would then be subject to interpretation & debate in resource consent processes. Even well drafted provisions would not send out a clear message. Is this activity anticipated in the plan subject to some conditions of consent, or is it generally not expected to occur? This will result in uncertainty for applicants & other interested parties
* All of the above issues would require councils to carefully & thoroughly think through the changes. This would be an enormous task, fraught with introduction issues. The cost associated with the myriad of plan changes & variations necessary has not been calculated, but in our opinion will be extremely expensive (in the $millions throughout the country)
* Councils will be required to change plans within 3 years, these changes must go through the public consultation process. However if, after 3 years, non-complying activity status remains in some plans, this category will automatically change to discretionary without public consultation.

The society has also put on its website new advice on:

* provisions of proposed plans having no immediate effect
* removing the ability of a person representing a relevant aspect of the public interest to join proceedings under section 274
* removal of blanket tree protection
* cross submissions
* security for costs, and
* reversing the presumption on notification.

To read the rest of the article online, click here.

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