Historic Places Canterbury / IConIC Submission: Improving Our Resource Management System Discussion Document

historic_places_cant_purple_logoThe following is the text of the joint Historic Places Canterbury and IConIC submission.

Ministry for the Environment
Improving our Resource Management System Discussion Document 2013

This submission is made jointly by Historic Places Canterbury (HPC) and by Interests in Conserving the Identity of Christchurch. (IconIC). HPC is an affiliated regional society of Historic Places Aotearoa which has been formed as a non-government national organisation to replace the role of the New Zealand Historic Places Trust (NZHPT) in representing and co-ordinating the activities of the new regional heritage bodies which will replace Branch Committees of the NZHPT under proposed legislation (Heritage New Zealand Bill). HPC has replaced the former Canterbury Branch Committee. IConIC represents a diverse group of building owners, developers, inner city tenants and heritage advocate who came together following the February 22nd 2011earthquake to advocate for the retention of heritage buildings where possible as part of the overall recovery of Christchurch and to support the redevelopment of the CBD to a central role in the economic, social, cultural and public life of Christchurch.

Questions for Chapter 1
Has this section correctly described the key issues and opportunities with New Zealand’s resource management system?

HPC agrees that Chapter 1 has identified a number of areas in which there is room for improvement and refinement in the Resource management system. We support the overall objective of increasing ease of use, certainty and predictability of the system while reducing costs and protecting the quality of resource management outcomes.

It is certainly desirable to reduce the complexities and costs of the system wherever possible so long as that can be achieved without compromising the overall objects of the Act.
Greater consistency in terms of definitions and practice is also desirable and this would be aided by greater policy direction from Central Government. However consistency needs to be balanced with maintaining local and regional decision making on resource management priorities and greater policy direction does not imply a need for more direct intervention by central Government.

It is  clearly preferable to try to resolve more conflicts and tensions upfront.  Avoiding costly and time-consuming appeals is in the interests of all parties in a conflict.  However the proposal to give Central Government greater powers of intervention is likely to militate against working together to achieve a common ground.  If parties know that the Minister can step in and impose a solution  then  those who have reason to think the Minister is likely to support their views are unlikely to try and reach a universally agreed outcome.

Events in Christchurch have also very clearly highlighted serious shortcomings in practice under the Act in relation to natural hazards and there is a clear need to elevate this to Part 2 of the Act.

However, we do not accept the assertion that the Resource Management Act does not reflect up to date values.  The discussion document presents no evidence to substantiate this contention and we believe that desire for sustainability is as strong as ever even though there is recognition that certain aspects of the RMA could be improved. Dissatisfaction with outcomes under the Act is inevitable because of the very nature of the issues that it deals with and there is undoubtedly room for improvement in processes to achieve greater efficiencies and cut costs as the discussion document has identified. That, however, is a very different matter from claiming that most New Zealanders are now more concerned about economics than protecting the environment.

Contrary to the view of some critics of the RMA, the balance has not swung too far in favour of environmental protection at the expense of worthwhile and legitimate development.  In contrast to the strong emphasis on prescriptive zoning in the previous Town and Country Planning Act, which allowed some zones to be essentially off limits to any development,  the RMA tends to be much more permissive. one consequence of this,  and one which the Discussion Document fails to address is the tendency for the Act to preside over the  incremental degradation of the environment.  The intent of the Act is to enable sustainable development while managing adverse effects.   A development will be allowed if its impact is deemed less than minor.   Successive minor impacts often result in  increased degradation through multiple small increments and over time they come to be seen as a new baseline against which a minor impact is judged.  One of the challenges confronting the RMA is to ensure that in the future  this sort of gradual attrition of environmental qualities no longer occurs.  This could be helped by greater use of NESs but the changes proposed to section 6 and 7 as well the proposal for approved exemptions in 3.3.2  will exacerbate rather the help the situation.  It is difficult to see how the “ strong environmental outcomes” promised by the Minister for the Environment can result from the changes proposed in the Discussion Document. The fundamental changes proposed for Part II of the RMA mean that there will be an inevitable lowering of environmental standards.

Questions for proposal 1: Greater national consistency and guidance

3.1.1 Change the principles contained in sections 6 and 7 of the RMA

Combining sections 6 and 7
We are strongly opposed to the proposal to merge sections 6 and 7 of the RMA .  Removal of the hierarchy between sections 6 and 7  has been done to redress the “imbalance” resulting from too much emphasis on avoiding environmental harm and “underweighting of the positive effects (or net benefits) of certain economic and social activities.” The discussion documents also raises  concern as to whether the environmental matters in section 6 actually reflect contemporary issues. The Discussion Documents bases its proposed changes on the recommendations of the RMA Principles Technical Advisory Group (TAG).  The views of this group are  strong on supposition, assertion and opinion with little in the way of hard data, though the data available from the Ministry does not justify the conclusions they reach.  We consider that there is no adequate justification to introduce  the fundamental change entailed in this proposal.  The new list of unweighted and unprioritised matters will  mean that the case law developed over time will no longer be relevant.  This will result in much uncertainty, leading to litigation with the costs and delays that entails.  By removing the weighting at present given to s. 6 matters  decision makers will have to give equal weighting to 14 different matters (and possibly more if others are included or retained as a result of this consultation).  Not only will this make decision making much more difficult but  it will inevitably result in the decision makers exercising a much greater degree of discretion than under the current provisions.  The more easily quantifiable benefits of development will almost certainly lead to more decisions being made in favour of development, which is no doubt what is intended by the proposed changes.  The section 6 matters were given priority when the legislation was introduced for the simple reason that they tend to be downgraded in importance when considered in “balance” with more easily quantifiable matters.

Inclusion of new principles

The risk and impacts of natural hazards
We support the inclusion of a new principle relating to natural hazards.  Although we do not accept the view of TAG that these have not been properly taken into account because of the emphasis on protecting the environment, it is clear that they have not been adequately taken into account and stronger direction is appropriate.  In fact failure to deal with hazards has had more to do with not setting up obstacles to development and an unduly optimistic attitude towards the likelihood of a natural hazard occurring. than a focus on protecting the environment.  Very often protecting the environment and taking into account the risk of hazards are completely compatible and in the Christchurch situation environmental groups seeking to protect wetland areas from subdivision specifically raised arguments about liquefaction only to be ignored by the Environment Court.   In so far as the failure to deal with hazards has been used as a justification for the sweeping changes to section 6 and 7, it is completely unjustified as all that is required is the addition of this matter to the list of principles in either section 6 or section 7.

The effective functioning of the built environment including the availability of land for urban expansion, use and development;
The efficient provision of infrastructure;
While we would support the inclusion of these into the current section 7 we are opposed to their inclusion in the proposed new section 6. Because the benefits of these matters are much easier to quantify than matters such as the loss of ecosystems  or built heritage there will be an even stronger tendency than at present for decision makers to favour infrastructure developments and subdivisions over saving a rare ecosystem, an archaeological site or a heritage building  when a greater weighting is no longer mandated.

We query why the Discussion Document has chosen to include a provision about the effective functioning of the built environment but has not adopted the sensible recommendation of the Urban Technical Advisory Group to include a principle relating to the quality of the design and planning of the built environment.

With the addition of these further pro-development sections we consider there is a need to include an explicit directive for decision-makers to weigh the cost and benefits including both short and long term costs.  Although this  implicit in the Act in so far as environmental costs are concerned all developments have opportunity costs of non-environmental sorts as well and these need to be considered as part of the decision-making process.

Deleting certain environmental principles

It is proposed to delete the following “because they are already effectively encompassed in section 5”:
7(aa) the ethic of stewardship
7(c) the maintenance and enhancement of amenity value
7(d) intrinsic values of ecosystems
7(f) maintenance and enhancement of the quality of the environment
7(g) any finite characteristics of natural and physical resources

We oppose the deletion of these matters.   This reason is specious.  It could be said that all the principles detailed in sections 6 and 7 are “effectively encompassed in section 5” but a decision has been made only to delete principles which relate to environmental quality.  So long as a “check-list” of key principles is incorporated in the Act then the removal of some which were previously present  conveys a clear message to decision makers that these matters are of less importance. The section has been considered sufficiently important and directive to propose adding new principles though they were  equally capable of being encompassed by section 5  which makes it clear that “sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety”.  This is yet another clear indication of an intention to effectively change the nature of the Act from one that is intended to control the effects of land use activities on the receiving environment to one which is more concerned with directing social and economic outcomes.  If we wish to revert to the planning system which operated under the Town and Country Planning legislation we need a much more robust comparison of outcomes and public debate around the issues than are to be found in the Discussion Document.

The maintenance and enhancement of the environment goes to the very heart of what the RMA should be about  and with this removed the problem of incremental degradation referred to above is likely to increase.  The concept of amenity is also a vital one in focussing the attention of decision makers on the quality of the environment and encompasses a wide range of impacts which have no counterpart in the other principles set out in the Act – matters such as dust, smell, congestion,  shading to identify but a few.  This concept is particularly important in relation to the urban environment. Although amenity is included in the definition of environment in the Act we consider it is important to retain it in the list of principles.

We believe the concept of stewardship, though similar to kaitiakitanga, is broader and should be retained as separate principle for that reason.

We believe that explicit recognition of  the intrinsic value of ecosystems is in fact a quite different matter than safeguarding ecosystems because of their life-supporting capacity  and that this is not already covered by section 5 as claimed. We see no justification for its removal.

Selective retention of directive language
We support the retention of directive language but oppose it selective retention.  Where directive language has been removed it gives a signal to decision makers that the principle is less important. We note that Principle (a) relating to preservation of the natural character of the coastal environment, wetland lakes and rivers and Principle (b) relating to protection of outstanding  natural features and landscapes retains the further provision  relating to their protection from inappropriate subdivision and development  but that this has been removed from the principle relating to the protection of heritage.  We can see no justification for this.

Introduction of the word specified
The word specified has been added to two principles:  (b) outstanding natural features and landscapes and (c) significant indigenous vegetation and habitats.    There is no indication how these matters will be specified.  Whether the specified list is satisfactory will be very dependent on the robustness of the identification process.  It provides no means for protection before a list is identified and does not provide an adequate means of dealing with new knowledge.  We are totally opposed to the inclusion of this word.

Introduction of the word significant
Although the word significant has been added to principles relating to the natural environment which fall outside the main areas of concern for HPC and IconIC we are disturbed by the implication of this change which restricts the application of the principles concerned.  We believe the word should be removed.  As it stands it is not defined and will create uncertainty and room for legal debate.  Does it refer to significance in extent or quality or both?  Is it intended to mean  nationally significant and if so will it remove the power for local regions identify vegetation or habitats which are locally significant.

Proposed s. 7

We recognise that the matters set out in 7(1) (2) (3) and (4) are useful and generally support the proposal to include them in the RMA but it would be more useful to develop fuller good practice guidelines. However we have reservations about the proposed 7(5).  It is in the nature of resource management issues that they will generally require a balancing between public and private interests land but by directing that all persons performing powers or exercising functions under the RMA must achieve an appropriate balance between public and private interests in the use of land the section seems to be setting things up for legal challenges as to whether an appropriate balance was struck.

Additional matters not covered in 3.1.1

We would like to see Principle (b) amended to make it clear that the term landscape includes cultural landscapes. Given that most of the country is a working environment many of the landscapes we value and may wish to protect will be cultural landscapes so it is desirable to be clear that natural landscape can include cultural landscapes.  Heritage landscapes are by definition going to be cultural and it is important that these can be identified and protected by the RMA but they are not necessarily encompassed by the definition of  heritage area. Cultural landscapes are often landscapes of high tourist interest and are able to generate important economic benefits just as much as the natural landscapes of our parks and reserves.  They are also the landscapes which are most meaningful to the people in there daily lives. Though they could be covered by the term amenity  inclusion of a clear definition would be preferable.

3.1.2 Improve the way central government responds to issues of national importance and promote greater national direction and consistency where needed

We accept that there are circumstances in which a district or regional plan may fail to take into account matters of national importance and in recognition of this the Act already provides some tools to allow Government intervention and this Discussion Document outlines some additional potential tools.   However, overuse of the power for Central Government intervention would diminish local decision making which is one of the hallmarks of the RMA system.  We therefore support the development of guidelines setting out the criteria as to when it is appropriate for the Government to intervene in nationally significant resource management issues and which of the various tools available to it should be used.  The development of such guidelines should involve public consultation.

There is a widespread tendency to assume that power to intervene is most likely to be used to remove obstacles in the way of a particular development project favoured by the Government.  Based on experience to date this is not surprising  but there is no reason why the criteria developed in the guidelines could not address situations of a type where a district, for example, fails to plan for the protection of buildings which have been recognised as landmark buildings under the proposed  Heritage New Zealand  Pouhere Taonga legislation. Where clear national policies have been developed and agreed upon following a national consultative process whether through the NPS or NES process  or some other process it is desirable to outline the criteria by which Government would intervene if there was inadequate response at a local or regional level.

3.1.3 Clarify and extend central government powers to direct plan changes
Clarifying the powers to direct plan changes is consistent with 3.1.2 and we support measures achieve this.  It is desirable to clearly set out the process central government must take when it opts to use this power and a stepped process seems appropriate.  However  we do not support extension of the existing power. We oppose the granting of a regulatory-type power to directly change a plan if the government is not satisfied that a Council has followed its directions.  In this situation the  Government should use the enforcement process set out in the Act which would provide independent oversight of its use of the power to direct plan changes and give the public much greater confidence that a Government would not be tempted to abuse the power.

3.1.4 Make NPSs and NESs more efficient and effective

We support the proposal to establish a combined NPS and NES process which should be more efficient and cost effective.

We accept that there are some issues of national significance which may nevertheless only affect certain regions or localities but identification of such issues need to follow a robust national consultation process.

We support in principle the further streamlining of processes for developing  NPSs and NESs, but the document does not make it clear what is envisaged.  We would not support streamlining which restricted consultation.

We support the proposal to  develop a non-statutory agenda to indicate matters to be considered for NPSs and NESs

Questions for proposal 2: Fewer resource management plans

3.2.1 Require single resource management plans using a national template that would include standard terms and definitions

We support the concept of a single document to contain all relevant plans.  This will be much more user friendly, especially for non-professionals.  We also support the idea of a national template which includes standard terms and definitions.  This would not only avoid confusing differences for people operating over more than one planning area but would also provide assistance to smaller Councils which do not have the same levels of expertise and experience available to them in creating plans. However the process for achieving a template must be robust and include opportunities for public participation.  We have reservations about proposals to include content for specific standardised zones and rules for particular activities.  If these are intended to be mandatory rather than guidelines they would constitute another intrusion of central government into the role of local government.  It needs to be clear that a local authority can depart from a template where there is good reason to do so.

3.2.2 An obligation to plan positively for future needs including land supply

Although we do not accept the assertion in the Discussion Document that insufficient attention is paid to meeting future needs as opposed to mitigating impacts and note that Councils also have a legal obligation to prepare Long Term Community Plans,we nevertheless support an amendment to indicate that planning for positive effects is a core function of Councils.   However we note that the discussion document  refers to the need to “provide for the social, economic or cultural well-being of the community”.   If the proposed amendment goes beyond a generalised statement indicating that planning for positive effects is a core function and adopts wording similar to the phrase quoted it must be amended in such a way as to clarify that this includes planning proactively for positive environmental outcomes.

3.2.3 Enable preparation of single resource management plans via a joint process with narrowed appeals to the Environment Court

There is positive merit in encouraging more internally coherent and better integrated single resource management plans for an area through a joint process and a more streamlined process. However we do not support narrowed appeals to the Environment Court.

3.2.4 Empower faster resolution of Environment Court proceedings.

We support proposals to :
• increase the Environment Court’s existing power to enforce agreed timeframes – for
example the time period for exchanging evidence
• strengthen existing provisions to require parties to undertake alternative dispute resolution
• make any law changes required to deliver the full potential benefits of electronic case

Questions for proposal 3: More efficient and effective consenting

3.3.1 A new 10-working-day time limit for straight-forward, non-notified consents
Although reducing the costs and time involved in preparing consent applications for small projects is generally desirable, we have some reservations about the proposed time limit.    The examples cited of simple bulk and location breaches and infill subdivisions are at present often the cause of serious downgrading of amenity for existing residents, who feel frustrated that such consents are usually treated on a non-notified basis.   Time pressure on the decision-maker may well lead to inadequate assessment of effects.  If this proposal is adopted we believe it is vital that lodging of written approvals should be one of the necessary criteria.

3.3.2 A new process to allow for an “approved exemption” for technical or minor rule  breaches
We have serious reservations about this proposal. While on the surface it may seem sensible enough it is contrary to one of the desired aims of the reforms to the RMA : creating greater certainty.  It  also has a strong potential to lead to a creep over time in what is considered the permitted environmental baseline.   It is easy to foresee developers pushing the boundaries if they know there is the power for a breach to be deemed permitted.  It is equally easy to foresee Council officers under pressure to complete consents in a timely way to  also gradually push out the boundaries of what is deemed a minor breach.  We believe that rather than allowing Council officers to treat a minor breach as permitted a greater safeguard would be provided by requiring written approval from affected parties.  If the breach is indeed very minor approval is unlikely to be withheld.  At the very least the situations where a breach may be treated as minor will need to be very carefully and tightly defined.

3.3.3 Specifying that some applications should be processed on a non-notified basis
We are opposed to directing further non-notified consents by regulation. The examples cited in the discussion document are all situations where communities should be free to reach their own decisions about whether non-notification is acceptable when developing their local plans.  Even though  a plan may anticipate increasing housing density for example, the amenity of existing residents can be severely impacted upon in the transitional period.  A community may choose to allow notified consents so that affected neighbours can have input.  Where a consent is notified a developer is likely to put greater effort into reaching a design solution which will be acceptable to neighbours. The experience in Christchurch has been that these matters are usually treated as non-notified but this has been a cause for considerable community grievance and serious loss of amenity to neighbours in transitional areas with a mix of heritage and character housing stock where higher density is allowed.

3.3.4 Limiting the scope of conditions that can be put on consents
The proposal to limit the conditions which can be placed on discretionary and non-complying activities limits the usefulness and flexibility of the RMA in dealing with unanticipated environmental impacts.  We believe that the benefits of  being able to make an assessment of the overall impacts of a discretionary or non-complying activity and then apply appropriate conditions outweighs the benefits of greater certainty for applicants.

3.3.5 Limiting the scope of participation in consent submissions and in appeals
We are opposed to any limitation on existing rights of public participation.  Limiting the scope of submissions and therefore also appeals to the reasons the application was notified would undoubtedly produce greater certainty for the applicant as the decision whether to notify will usually be based on the information the applicant has provided.  However this certainty will come at the expense of better outcomes for the environment.  Third parties may well have knowledge and information which though not relevant to the particular reason a decision was notified could have real bearing on the desirability of allowing the resource consent.  For example a small subdivision may be notified because it is likely to have more than minor impact on traffic flows but a submitter may have knowledge about an unrecognised archaeological site or heritage building  or a rare habitat within the subdivision area.. Under the proposed change there would be no possibility of setting conditions around these matters. The best plan in the world will have unintended consequences or consequence which could not be anticipated at the time the plan was made.  This proposal would have the effect of limiting the flow of information on which decisions are made to the potential detriment of the environment.

3.3.6 Changing appeals from de novo to rehearing
We are opposed to limiting  plan and resource consent appeals to appeals by way of rehearing however we believe that there could be some merit in exploring a lower cost tribunal for resolution of minor matters. Ministry for the Environment figures show that in 2010/11 only 1% of decisions were appealed, a figure likely to be typical of other years.  This does not seem at all  unreasonable given the complexity of many resource management issues with the inherently conflicting interests which need to be negotiated and it certainly does not justify the assertion in the Discussion Document that there is an over-reliance on appeals.

During the course of plan hearings  and resource consent hearings unsubstantiated assertions can be made which are not open to cross examination.  The relative informality of the process encourages greater participation by the public who may be intimidated by a more formal environment court hearing.  This is particularly important for plan hearings where achieving a robust plan requires good public buy-in. The Council level hearing  also acts as a sort of clearing house where minor concerns can be resolved .  However if the appeals were limited to rehearing the Council process would need to be much more formal with the ability to test unsubstantiated evidence through cross examination.  This would, as noted, tend to discourage wide public participation in plan hearings  and would impose much greater costs on Councils and therefore ratepayers.

The Environment Court provides important independent oversight to ensure decisions are being made in accordance with the RMA and brings huge experience to navigating the way through contentious issues.  Allowing an appeal by  way of rehearing only does not make the best use of the expertise provided by judges and the expert lay commissioners.

Limiting an appeal to a rehearing would also tend to discourage parties from reaching agreements during the time leading to the appeal.  Once a decision has been made at the Council level, the costs of an appeal to both parties tends to focus the mind on the possibilities for compromise neither side was prepared to concede while there was a chance of gaining what they wanted at the Council hearing.  Narrowing down the focus to only those issues where there are irreconcilable differences is a legitimate and useful aspect of appeals procedure.  If quicker, less expensive appeals by way of rehearing only take place then parties will be more strongly tempted to try there luck again at the higher tribunal rather than try to find common ground.  On the other hand where changes to a proposal do arise as a consequence of the initial hearing it is vital to allow new evidence as different impacts may occur and different parties may be affected who have not previously had an opportunity to present any evidence.

3.3.7 Improving the transparency of consent processing fees
We support setting fixed charges where it is feasible to do so and we also support a mandatory  requirement for Councils to estimate  the cost of any additional charges.

3.3.8 Memorandum accounts for resource consent activities
We support this proposal. It is desirable to have cost certainty up-front for applicants and to increase the transparency of setting charges.
In plan

3.3.9 Allowing a specified Crown-established body to process some types of consent
We do not support an expansion of the call-in powers or the development of an alternate consenting process using a dedicated Board of Inquiry or Crown Body.  This is an unnecessary encroachment by central government into local decision making.

3.3.10 Providing consenting authorities tools to prevent land banking
We support this proposal.

3.3.11 Reducing the costs of the EPA nationally significant proposals process.
We support these proposals to increase increase the efficiency of the nationally significant proposals process and it is certainly  a sensible move from both an environmental and cost saving perspective to provide parties with electronic documents in the first instance.

Questions for proposal 4: Better natural hazard management
We fully support the proposals to improve the ability of the RMA to manage natural hazards more effectively. It makes no sense at all for some hazards, such as lahars to be excluded from consideration in subdivision and other land-use consents.  The experience of Christchurch has also amply demonstrated the shortcomings of an emphasis on the likelihood of an event without adequate consideration of the potential magnitude of the  impact in the event of the worst happening.   We therefore support the addition of natural hazards to the principles in Part Two,  as well as amendments to section 106 to cover all natural hazards and we endorse the clarification that the full risk of natural hazards, both likelihood and magnitude of impacts should be taken into account. We also recognise the value of developing national guidelines to assist local authorities to improve planning for natural hazards.

Questions for proposal 5: Effective and meaningful iwi/Māori participation

We support the proposals to enable more effective iwi/Maori participation in resource management.

Questions for proposal 6: Improving accountability measures

We support the proposals to work with councils to improve practice.  It is undoubtedly the case that there is variation in the ability of local authorities to undertake their responsibilities under the Act.  Providing for the protection of heritage is one example of an area of responsibility in which there is large variation in the capacity of local authorities.  We can see a positive benefit in establishing clear expectations in relation to key performance factors and in establishing a national monitoring system to provide information on performance in relation to ecological, economic, social and  cultural outcomes.  Monitoring is particularly important to enable more responsive policy development in the future based on real data rather than mere anecdote.

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