Resource Management for the 21st Century – summary version*
The RMA: the source of all our discontents?
The 1991 Resource Management Act (RMA) is under fire because it is seen in many quarters as an impediment to much-needed investment in housing and business. At the same time, communities are concerned that the Act is not serving the environment well, allowing the rapid and intrusive transformation of established urban areas, for example, the threat of development in otherwise pristine areas, or the degradation of waterways. And those working with the Act all-too-often find the process costly, time consuming, and unduly litigious, with uncertain and unsatisfactory results.
Can the RMA really be responsible for both frustrating investment and allowing degradation of the environment? Well, yes, because it has become a tool for all purposes, a multi-headed hydra that promises to drag us all back into the swamp.
A history of ongoing reviews and amendments has left the Act weighed down by multiple and conflicting objectives, and complex processes. The introduction of Housing Accords to bypass it altogether in the interests of freeing land for housing and the creation of a new process for planning Auckland City are ad hoc arrangements that suggest that the RMA has had its day. And ministers fiddling with it, all too often behind closed doors, will not tame the beast.
What to do about it?
My proposal is to separate environmental stewardship from responsibility for development, rewriting the Act so that it focuses on protecting what is important in our natural environment. At the same time, the Local Government Act can be streamlined as a better means for communities to influence development.
From Dictating Uses to Managing the Environment
The RMA was a bold replacement for the 1977 Town and Country Planning Act which relied on often-dated lists of what land uses would and would not be allowed in different zones.
The RMA instead required councils and resource users to focus on managing the environmental effects of activities in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety. It set out broad approaches and listed environmental attributes to be considered by councils preparing resource management plans or hearing applications for change to those plans, or for consents under them.
A shift from regulation based on a long-standing town planning tradition to regulations informed by environmental values, natural science, and the needs and ambitions of communities required significant changes in institutionalised practices. They were not forthcoming.
The planning community adopted the blunt tool of exclusionary zoning of land uses as the favoured means of avoiding, mitigating, or remedying environmental effects. The potential for more measured development in sensitive areas or for new approaches to environmental management yielded to the old practice of writing rules about what might be done, and where. At the same time new provisions for community participation fostered obstruction by partisan interests and promoted NIMBYism, increasing reliance on judicial decisions without necessarily delivering environmental gains.
While the intent of the RMA was to protect the natural environment, its scope today extends to include the built environment. Its definition of amenity values to be protected is all-encompassing and open to wide interpretation (and debate): “those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes.
The scope of natural and physical resources is unlimited, covering land, water, air, soil, minerals, and energy, all forms of plants and animals (whether native to New Zealand or introduced), and all structures.
And now the Minister for the Environment wants to introduce urban and housing objectives, adding to what has already become a confused mandate for councils and consent authorities.
The Act was simply not designed for these expansions, and practitioners are poorly equipped to implement them. If this latest initiative goes ahead we can look forward to more litigation, more debates about interpretation, more delays, and more costs.
Time to move on
Having worked extensively under both the TCPA and the RMA, I believe that it is time to start over, to separate environmental guardianship from responsibilities for development.
Given New Zealand’s small population and its diverse and challenging landscape let’s revert to an act focused on the natural environment. In doing so we would be acknowledging today’s international imperatives for sound environmental stewardship.
A new act could locate responsibility for setting well-founded environmental standards within a scientifically strong central agency. It would focus on measures that manage, preserve, and enhance biodiversity, soils, air and water quality, and coastal environments. The grounds for intervention would be based on a combination of international protocols and nationally agreed standards, mediated by local physical conditions and subject to rigorous evaluation. Application would be through regional offices.
Environmental envelopes would be established within which development would proceed subject to clearly specified and consistent conditions. Envelopes might be delineated by no go areas based on sound scientific evidence. Within these envelopes local communities could then pursue development, moderated through the provisions of the Local Government Act 2002 (LGA).
Changing the practice of planning
Changing the way things are done requires breaking down institutional inertia. New statutes require policy practitioners and those affected by their regulations to adapt to the changed demands. Planning may once more have to become progressive, scientifically-informed and forward-looking rather than conservative and precedent-based, stymied by tradition.
One option for institutional change would be for a national environmental agency absorbing the Ministry for the Environment and the current Environmental Protection Authority. It could also absorb the consenting responsibilities of the Department of Conservation (which would become more clearly the manager of and advocate for conservation values and the conservation estate).
Given that regional councils are generally effective in environmental management, it makes sense to transform them into the regional offices of the central agency, developing and implementing regional environmental plans based on national policies and standards. Plan preparation would still include local consultation and allow for challenges before independent commissioners and local council representatives. The Environment Court could continue as final arbiter.
Separating environmental regulation from planning for the built environment would pave the way for changes in local government. Territorial boundaries may be modified to reflect communities of interest and not simply physical boundaries. The shape and composition of local boards could be more closely aligned with local circumstances, values, and needs.
The LGA already requires councils to provide for the social, economic, cultural, and environmental well-being of communities when they prioritise, plan, and budget expenditure. The changes proposed would exclude councils from controlling matters to do with the natural environment. Instead they would be required to comply with regional environmental plans. Local regulation of development could be managed through the development of spatial development plans, although these would be about facilitating desirable development rather than precluding “undesirable:” development. They would map the commitments councils make in long-term community plans and budgets. Among other thing, spatial plans would indicate council intentions for infrastructure investment.
Changes would be required of Council Controlled Organisations. Currently, CCO business plans can influence development independently of plans prepared under the RMA. Under the new arrangement CCOs would also be required to comply with regional environmental plans. They would need to cooperate with councils in the preparation of spatial plans and implement the infrastructure commitments made within them.
The changes proposed raise issues and opportunities beyond those discussed here. In summary, though, they suggest:
- Consolidated responsibility for environmental regulation in a national agency operating through regional offices, facilitating compliance with international environmental commitments and central policy settings, while responding to local conditions;
- National policies and standards founded on robust scientific evidence and informing regional environmental plans which would be subject to local evaluation and consultation;
- Territorial councils bound by regional environmental plans but responsible for community well-being within the development envelope established by such plans. They would focus on ensuring adequate land and infrastructure for development in an economically viable and fiscally prudent manner, providing public services and amenities, and maintaining the quality of the built environment (particularly with reference to efficiency and safety);
- Local boards could influence the built environment in the interests of local communities;
- CCOs would be accountable for delivering the infrastructure required to support spatial development plans.
While these arrangements will reduce local autonomy over environmental matters, they improve both environmental management and the capacity of spatial planning to provide in an effective manner for economic, social and cultural development. Councils’ accountability will increase as their mandate is clarified, conflicts around the environment are externalised, the consistency and quality of environmental regulations are increased, and costs reduced.
*The full paper, Resource Management for the 21st Century, can be read HERE