This is not the first time in our history that the government has looked to kick-start the economy with large infrastructure, job-creation projects.  There are some lessons to be learned from the past: perhaps we need to take just a little time and accept some community input in order to get it right!

 

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This week’s government announcement to fast-track large-scale, job-creating developments by means of yet another change to the Resource Management Act (RMA) sounds uncomfortably similar to the Think Big projects advanced by the Muldoon government in the 1970s.  It is interesting that this government, which relies on a coalition agreement with the Green Party for its parliamentary majority, is venturing into the same territory that arguably spawned New Zealand’s conservation movement following decisions on the Clyde Dam and the raising of Lake Manapouri, for example.

It is a difficult and fine line that the government has to walk: on the one hand there is clearly a need for significant support to finance a rebuild (literally) of the economy; on the other hand we have strong policy drivers to achieve environmental and cultural goals, for example around water quality. Labour’s roots appear to be at the forefront of the latest announcement with emphasis being on job creation, speed and output.

The ‘Think Big’ Era

Perhaps some of the present government will be old enough to appreciate the irony attached to this announcement.  Some of the Muldoon era ‘Think Big’ projects were bitterly opposed at the time.  Most involved, what was at the time seen as draconian use of the Public Works Act, to achieve large-scale public works projects that were viewed as essential to  support economic growth.  Processes under the Town and Country Planning Act (the predecessor to the RMA) were ‘fast-tracked’ with reduced opportunities for public participation or opposition.  The results are still clearly visible today.  Think of those iconic power pylons marching across outstanding landscapes in Otago and along the Desert Road.  What about Marsden B? That oil-fired power station across from the Marsden Point oil refinery that became the country’s largest and most costly white elephant. Despite various attempts over the years to find a use for it, Marsden B still stands derelict near the entrance to Whangarei Harbour. Perhaps it fulfilled its role solely in job creation, although that does seem rather extreme.

Fast-tracking Environmental Legislation

The new  legislation will enable selected/qualifying (we are not sure of the exact process yet) projects that will involve significant job creation to be directed to a central panel for consenting.  So far we know, the panel will be chaired by a current or retired Environment Court judge or a senior lawyer and their decisions will be out in 25 days or less. The panel will “apply” Part 2 of the RMA and environmental ‘safeguards’ will be retained. We know that the panel can receive comments on the application but it is unclear who gets to comment or how.  The panel will have specialist technical advice and its membership will include local government and iwi expertise.  The press release from Environment Minister David Parker is not clear on whether there will be more than one panel.  Presumably there will be as even one consented project per  6 weeks (let’s assume the panel won’t work weekends and will have a couple of days between projects) will not exactly ‘kick start’ the rebuild!

The latest proposed changes to the RMA are the most recent in a string of changes aimed at fast-tracking large developments.  Those changes already have seen the ability for proposals to bypass the normal local authority hearing processes that allow for public submission and engagement. 

The government can already call in proposals considered to have national significance  and require  direct referral to a Board of Inquiry for determination. The Board of Inquiry is typically chaired by a sitting or retired Environment Court judge and has a tight timeframe for delivering a decision.

The call-in procedure was first introduced through sections 140-150 of the RMA as originally enacted in 1991 and now repealed. The provisions authorised the Minster for the Environment to directly consider an application for resource consent for a project of national significance. The process was only used once, in 1993, when the Minister established a Board of Inquiry to make recommendations on an air discharge application for a 400 megawatt power station at Stratford in Taranaki. The provisions were then amended in 2005, with the power of decision being transferred to the Board of Inquiry.[1]

The 2009 amendments also looked to fast-track the RMA. Applicants for a resource consent were given the ability to apply to a consent authority to be directly referred to the Environment Court.[2] It has been noted that even though a direct referral procedure allows parties to avoid potential delay and cost by bypassing a Council hearing, it also removes the opportunity for a less formal first hearing which is perhaps better suited to resolving issues raised by lay submitters. The 2009 changes also substantially amended the procedures of the Board of Inquiry for dealing with resource  consents by introducing Part 6AA.[3] The Minister still has a power to call in an application to be heard by the Board and this can be done at the Minister’s own motion or at the request of an applicant or consent authority.

Amendments made in 2011 further allowed for developments to be decided directly by the Environmental Protection Authority (EPA). The EPA also has increased powers to hear and decide applications with limited public involvement.[4] These provisions were further amended in 2017.[5]  Again, the matters heard by the EPA relate to those deemed by the Minister as having national significance. The latest changes contained in the Covid-19 Recovery (Fast Track Consenting) Bill, will be but a small extension of powers already within the RMA  and that’s without mentioning the many and varied previous changes over the years to notification provisions.

The Consultation Conundrum

It is also ironic that while the government is moving steadily towards removal of public rights of objection and appeal in favour of a faster and more certain outcome through these successive changes to the RMA, our own Hamilton City Council has recently voted to withdraw parts of Plan Change 6 and all of Plan Change 11 to the Hamilton District Plan.  The withdrawn plan change provisions deal with residential intensification: PC 6  enables greater residential density within existing residential zones and PC 11 provides for smaller sections in greenfields subdivisions. 

What is the irony, you ask? Well it appears that the 2 work streams, which have involved significant amounts of professional input from HCC staff and consultants, and in the case of PC 6, was  the subject of public submission, have been abandoned following pressure on councillors from vocal and connected ratepayers living in our existing residential neighbourhoods.  So on the one hand, central government is moving steadily towards removing the rights for objection from people, whether or not they are directly affected, on the other hand our own Council is bowing to specific  objection from the same category of people without bothering to complete a partially commenced public process. That in itself suggests a disturbing lack of confidence in the ability of qualified decision makers to sift out genuine issues and get them resolved as part of a normal hearing process.

One might argue that the NIMBY (not in my backyard) pressure that has been effective with HCC councillors is a clear example of the need for this further change to the RMA.  However, I can’t accept that excluding submission rights is entirely justified. It must be possible to filter submissions and identify the issues that really need professional input and consideration.  The ‘bad’ infill housing outcomes that horrified our Hamilton NIMBYs and frightened our councillors can only occur because there is insufficient direction about the outcomes expected from good urban design.  Change is normal and, in my opinion, critical in any modern society and it should be embraced with sensible policies and rules that guide the outcomes desired. Spending a bit of time checking that the framework is correct and that unintended, but long lasting adverse effects don’t happen has got to be the way to go.

Certainty

I was also pretty nervous to read the notes to the Covid-19 rebuild  press release which state that once a project is directed to one of the new consenting panels “there is a high level of certainty the resource consent will be granted.”  One has to ask whether there is much point in the project going to the panel at all.  Perhaps we should be comforted knowing that if a new application for Marsden Point B is directed to the panel, consent will be granted but there might be some additional planting or noise reduction devices in the conditions!

One of the cornerstones of our legal system is that decision makers that determine the outcomes of our legislative processes do so with freedom and discretion and they operate within clear guidelines of fairness, reasonableness and natural justice.  Decision makers are required to consider the relevant law and to make decisions using their good judgment.  Let’s hope that can happen for these rebuild projects with sufficient input from a variety of sources and not just from the proponents of the development or project.  The long-term results will be with us for decades.

 

[1] Resource Management Amendment Act 2005, ss 79-83.

[2] Resource Management (Simplifying and Streamlining) Amendment Act 2009, s 69.

[3] Resource Management (Simplifying and Streamlining) Amendment Act 2009, s 100.

[4] Resource Management Amendment Act 2011, ss 3-13 and Resource Management Amendment Act 2011 (No 2), ss 37-46.

[5] Resource Legislation Amendment Act 2017.

 

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you. 


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