By Caroline Miller
This two-part series will look first at the demise of the RMA and its review before turning to what issues might arise in its replacement.
When the Resource Management Act 1991 (RMA) came into operation it was hailed as ground breaking legislation in making sustainable management its foundation. Sustainable management only dealt with environmental effects of development, side-lining any social and economic effects. Unusually, it was implemented in a neo-liberalist government and economic system where the market was presumed to make the best decisions. Fast forward to 2020 and that same RMA now resembles a poorly designed patchwork quilt that has neither protected the environment nor sped up development processes, one of the most unrealistic claims of the RMA’s proponents in 1991.
With rare unanimity, all New Zealand’s political parties agreed that the RMA would be replaced. Given the time, funding and work that has gone into the recent review of the RMA, it seems inevitable that any replacement for the RMA will be based on the report of the RMA Review Panel. While COVID 19 seems likely to put environmental issues on the back burner, the desire to repair the economy may keep RMA change on the policy agenda. It is this aspect which has seen the conservative National Party suggesting, ambitiously, that a replacement would be achieved in the first 100 days of their administration. This two-part series will look first at the demise of the RMA and its review before turning to what issues might arise in its replacement.
The Core of the RMA’s Problems
The key to understanding the RMA’s replacement lies in understanding its failures. At the heart of its woes was the expectation that stronger environmental protection could be enacted within a cheaper and streamlined development approval system. These two aims ultimately proved to be irreconcilable. The RMA with its central environmental focus, effectively ignored urban New Zealand, home to 86% of the population. If central government had been more willing and interested in playing its role in shaping the new RMA systems, as the Act’s three-part mandate clearly intended, regional and city/district councils to painstakingly construct the new RMA system. When that new system failed to meet the expectations of both politicians and the development community, the solution was to amend the Act. The RMA became internally inconsistent and difficult to administer as amendments added new uncertainties and costs to a system struggling to achieve the Act’s environmental vison.
The RMA did bring some improvements in enforcement, much of the rest of the Act spawned a more complex system than the one that preceded it. Resource management consultants and lawyers’ numbers exploded, district and regional plans became bulky complicated documents, while the public consultation and submission processes became increasingly litigious. Consultation often seems to be a competition with winners and losers rather than a positive and collaborative process. The planning profession has often become convenient scapegoats for an enraged applicant or community, with little ability to respond to public criticism. That has increasingly, as overseas, made planning a toxic profession with high staff turnover. The RMA became the scapegoat for planning issues, developing a reputation as a heavy-handed suppressor of good development and of favouring the environment over people. The truth probably lies somewhere in the middle but whatever the cause, the RMA is now so blighted that neither the public, the politicians nor planners believe it creates an effective planning system.
Replacing the RMA
The present Labour-Green-New Zealand First government instituted a comprehensive review of the RMA. This was largely undertaken by the Environmental Defence Society (EDS) a ‘not-for-profit environmental organisation comprised of resource management professionals who are committed to improving environmental outcomes’, rather than by the small and policy-focused Ministry for the Environment (MfE). EDS has always produced research based on evaluating aspects of the RMA’s implementation is best known for appealing high-profile environmental cases. With the EDS’s extensive RMA reports largely completed, in July 2019 the government announced a comprehensive review of the RMA, chaired by the retired Court of Appeal Judge, Tony Randerson QC. It was required to report on how to improve environmental outcomes and better enable urban and other development within environmental limits. Judge Randerson, who had chaired an earlier RMA panel in 1990-91, was assisted by a small panel which included Amelia Linzey, Technical Director of Planning at Beca; Dean Kimpton, Managing Director at AECOM; Kevin Prime, an Environment Court Commissioner, farmer and conservationist in Northland; Rachel Brooking, an environmental and local government lawyer and Raewyn Peart the Policy Director at the Environmental Defence Society.
The Proposed Replacement
The Review Panel’s report ambitiously proposed replacing the RMA with a Natural and Built Environments Act and a Strategic Planning Act, one of which will at last acknowledge the planning needs of urban New Zealand. The RMA’s sustainable management, would become a simpler requirement to enhance the quality of the environment to support the wellbeing of present and future generations while recognising the concept of Te Mana o te Taiao. This puts Māori environmental principles at the heart of the new Acts rather than leaving them, as in the RMA, as subsidiary concerns. The failure of sustainable management was a product of both its odd definition and the inability to engage the public in considering the needs of future generations. Clearly that sustainable management would be difficult to achieve given the interlocking nature of the environment, society and the economy. As a planning practitioner at the RMA’s advent, sustainable management always proved difficult to explain to politicians and the public who found it impossible to see beyond visible generations (i.e. their children or grandchildren) and even harder to constrain decision-making in their interests. Similar is being experienced with responses to climate change and is a signal not to over-estimate the altruistic response of communities.
The Review Report also emphasised at last, strengthening monitoring and evaluation and enforcement. For too long monitoring and evaluation have been regarded by local government as unaffordable luxuries despite the very clear evidence that the environment was being actively degraded and the RMA’s performance was often ineffective. The proposed monitoring role for the Parliamentary Commissioner is probably a very positive proposal. Many RMA amendments were based on largely anecdotal evidence, and only better monitoring and evaluation can avoid this in the future.
Implementing the Legislation
Like these Acts the RMA was also an Act that represented revolutionary rather than evolutionary change, and that became one of its greatest challenges. Revolutionary change requires past plans, methods and processes of the past to be wholly abandoned, meaning we lose what we have learnt from the RMA. We also need to acknowledge the role of politicians. One of the RMA’s failings was its ability to produce worthy and uplifting objectives with poor or non-existent implementation strategies. When the Horizons’ Regional Council produced One Plan, their integrated regional policy statement and plan, it was hailed as an improved and more holistic regional plan. However, when it attracted adverse comment from those affected by it, the regional council lacked political will to fully implement it. It took an Environment Court case to force the council to implement and enforce its own plan. If these new Acts are not to suffer the RMA’s fate then the focus must be on improving and facilitating more adventurous and more effective implementation.
The new Acts would require fewer plans, but plans with a much wider scope. Territorial and regional councils with mana whenua will be required to produce a high-level development regional spatial plan which is ‘consistent with the purposes of the Natural and Built Environments Act, LGA and LTMA, national direction, the national adaptation plan under the CCRA and relevant government policy statements’ and a single regulatory plan. The spatial plan’s scope is ambitious and calls for a level of integration never before attempted in New Zealand. The new plans’ regional base could be a problem. Regional council boundaries are based on river catchment areas and that may make little sense for spatial land use planning. For example, the Horizons’ Regional Council encompasses the river catchments of the Manawātu and Whanganui rivers, 10 territorial authorities, two cities, an array of small towns many of which face population loss and economic challenges made worse by COVID 19 and huge areas of productive rural land, for which planning controls will be needed. This is typical of regional New Zealand so it is hard to see a regulatory plan easily deal with such diversity. So those fewer plans may be much bigger and much more complex than the RMA plans they replace.
The different levels of RMA governance, were developed in concert with a comprehensive restructure of local government. The local body reforms of 1989 created larger city and district councils and put in place the new regional councils, largely to fulfil their RMA functions. What is now proposed is a system modelled on the Auckland (Spatial) Plan and the Auckland Unitary Plan. These are usually described as challenging plans, possibly because Auckland is New Zealand’s only true metropolitan region. New Zealand has a rather odd urban hierarchy, with Auckland substantially larger and growing faster than the rest of the country. Legislation in 2010 created the new Auckland Council in an attempt to better plan and manage the city as the metropolitan region it was. That makes Auckland a poor model for a planning system for the rest of the country, some of which faces population decline not expansive growth.
If the new Acts require territorial and regional governments to co-operate and create integrated plans while also collaborating over the Three Waters reforms, then this surely strengthens the case for more unitary authorities or a new regionally based local government modelled on the Auckland Council. If there is to be widespread local government reform alongside the new aActs then that can be expected to lengthen and make more complex the transition from the RMA to the new legislation. Given the economic trauma of COVID 19 this does not seem an ideal time to institute potentially costly new processes.
Central government is envisaged as returning to past models of greater direct involvement in planning. It will set targets including the establishment of environmental limits or standards, to guide the new plans. This role is likely to be modelled on the existing RMA National Environmental Standards (NES) and National Policy Statements (NPS), that central government has only started to use in earnest in the last 15 years, but integrated to form a single document. Water allocation and management where there are already NPSs and NESs in place, are likely to be early foci of such involvement. Recent governments have shown their willingness to be much more explicit in terms of the direction provided by NPSs with the recent NPS on Urban Development effectively imposing higher density urban development on New Zealand’s larger and growing cities, regardless of public opposition. The public have demonstrated through opposition to higher density residential provisions in district plans that this does not equate with their vision of life in their cities. If central government is to play a more directive role in shaping key planning and resource management issues then they will need accept public opposition to their proposals.
This greater direction from central government suggests a stronger and more substantive role for MfE or an expanded Environmental Protection Agency. This would be a return to the days of the Town and Country Planning Directorate of the Ministry of Work and Development which provided a government perspective on planning and became involved in planning submissions and appeals. This involvement will need to go well beyond the rather basic and tentative approaches of the existing National Planning Standards and will require a more fully staffed and active MfE. There also seems the potential for greater central government involvement to crowd out or limit the involvement of communities in shaping the planning and management of their local environment. Communities used to and expecting consultation and a meaningful submissions’ process might find this challenging.
Māori Interests in a Replaced RMA
A National Māori Advisory Board will ensure the Te Mana o te Taiao is achieved and the on-going commitments to the principles of Te Tiriti o Waitangi, remain at the heart of planning and decision making. The life of the RMA has seen significant but usually hard-won gains in terms of incorporating Te Ao Māori into plans and planning processes. The scale of the suggested new plans may make it challenging to move beyond big picture incorporation of Māori concepts in plans to meeting the everyday expectations of mana whenua. It has become increasingly clear that respect can be proffered to Te Ao Māori in planning documents while plan implementation ignores it. There have been increasing and unrealistic expectations of the ability of iwi and hapū to rapidly and efficiently respond to the demands of a system that was not designed to accept or reflect Māori decision making and engagement models. That has often led to councils and applicants seeking tokenistic input from hapū and iwi and mana whenua becoming increasing disillusioned with RMA processes. This does not mean that local authorities aimed to reduce hapū and iwi involvement in planning systems. Rather it reflects the realities local authorities face in terms of the overlapping interests of different hapū and iwi and the pressures to meet RMA timeframes. It is imperative that any RMA replacements are designed to incorporate more meaningful involvement of hapū and iwi.
Caroline Miller is an Associate Professor in the School of People, Environment and Planning at Massey University and is a Fellow of the New Zealand Planning Institute. She is an expert in environmental planning and policy in New Zealand.
Disclaimer: The ideas expressed in this article reflect the author’s views and not necessarily the views of The Big Q.
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