Submission by:
Guardians of Pāuatahanui Inlet 01 April 2009

Committee Secretariat
Local Government and Environment Committee
Parliament House
WELLINGTON

1 April 2009

Submission on the Resource Management (Simplifying and Streamlining) Amendment Bill 2009

Summary

Guardians of Pauatahanui Inlet Inc. (GOPI) considers this Bill shifts the balance of the Resource Management Act (RMA) away from environmental protection and severely reduces the oppportunity for community participation in decision-making about the environment in which we live.

There are a number of proposed changes in the Bill that will restrict public participation and/or reduce the quality of decision-making under the RMA. These include:

• removing the presumption in favour of notifying resource consent applications and changing the criteria for public notification
• allowing the Environment Court to require security for costs
• limiting appeals on policy statements and plans to questions of law (except with the leave of the Environment Court)
• allowing applicants, with the agreement of the council, to have their application heard by the Environment Court in the first instance (direct referral)
• deleting non-complying activities
• removing the Minister of Conservation's decision-making role in respect restricted coastal activities
• removing the ability to lodge further submissions in the planning process
• preventing rules in plans from having any effect until decisions on the rules have been notified.

GOPI opposes these provisions in the Bill.

On the other hand the Bill proposes:

• increasing the flexibility and scope of enforcement powers and responsibilities
• raising the maximum fine for committing an offence
• giving the Environment Court powers to direct a review of a resource consent where it is connected to an offence that has been committed
• removing the provisions of the Act that protect the Crown from enforcement action.

GOPI supports these provisions in the Bill.

Introduction

The Guardians of Pauatahanui Inlet is an incorporated society, with about 190 financial members. Our objectives include the following items of relevance to this submission -

(a) Consistently with its ecological values, to encourage, promote, protect, maintain and foster the natural, historic and cultural values of the Pauatahanui Inlet.

(b) To promote recognition locally, regionally, nationally and internationally of the ecological values and standing of the Inlet.

(c) To educate all persons, corporations, organisations, governments and their agencies in the values set out in (a) & (b).

GOPI was set up in 1991 to promote the recognition of the ecological, historic, recreational and cultural values of the Pauatahanui Inlet. Guardians have conducted triennial surveys of the cockle population in the Inlet since 1992 and a monitoring programme for the ecological health of Inlet catchment streams since 2002. We have produced an education kit for use in schools and run a number of educational and promotional activities. We have made many submissions on behalf of the Inlet in Resource Management Act (RMA) planning processes,

GOPI was instrumental in initiating, promoting and supporting the development of the Pauatahanui Inlet Action Plan. This plan is endorsed by the Porirua City Council and Greater Wellington Regional Council and is the working basis for the City Council's Harbour and Catchment Management Strategy that is now being developed and implemented.

Pauatahanui Inlet is the largest estuary in the lower North Island and is important for the reproduction and nurturing of fish and birds. It is identified in the Regional Coastal Plan as a significant coastal environment and is registered as a site of National Significance in the Sites of Special Wildlife Interest database. It is universally recognised as an important and sensitive environment that requires special efforts to protect it from further degradation from urban and rural development and roading works in its catchment.

The importance of the RMA to community groups

The RMA is the main way that community groups such as GOPI can have a say in how our resources and environment are managed. One of the core ideas behind the RMA is that the best outcomes for sustainable management are achieved when the public has the ability to participate fully in decision-making processes.

We sympathise with the intent of the Bill to simplify and streamline the RMA but believe that many of the proposed changes will significantly restrict the ability of communities to participate in decisions that affect them.

Critically, even fewer resource consent applications will be notified. The proposed rise by nearly 1000% (from $55 to $500) in the cost of filing an appeal at the Environment Court will be a significant deterrent to affected individuals and community groups.

The Bill's proposal for a more rapid planning process will lead to poor plans that in turn are likely to lead to more rather than less court action.

Clauses opposed

We oppose those clauses in this Bill which may reduce the ability of community organisations such as GOPI to have an input into developments which may have an adverse effect on the environment, including -

1. Clause 133 - Security of costs

As part of the intention to deal with 'Frivolous, vexatious, and anticompetitive objections', the Bill proposes reinstating the power of the Environment Court to require security for costs and allowing the Courts to award more extensive costs, including indemnity and punitive costs.

Many individuals and community groups will not be able to afford the large cost securities that must be posted before any appeal. This means they will not get fair representation when their local environment may be adversely affected

Being forced to raise this kind of money at the outset will make it impossible for many community groups and individuals with worthwhile cases to appeal decisions that potentially have bad environmental effects.

We recommend that clause 133 of the Bill is deleted.

2. Clauses 147 and 152 - Non-complying activities

As part of the intention to deal with 'Improving plan development and change processes', the Bill proposes removing the non-complying class of activities.

We oppose the removal of the non-complying class of activities from the RMA. We believe their removal will reduce the RMA's ability to offer protection to the environment. It may also result in an enormous amount of time and cost being spent on changes and variations to plans to remove non-complying status.

We recommend that clauses 147 and 152 of the Bill are deleted.

3. Clauses 132, 136 and 148 - Appeals to the Environment Court

The Bill removes the ability to appeal policy statements and plans, other than on questions of law (except with the leave of the Environment Court). Policy statements and plans are the main way that the principles of the RMA are put into practice, and are the basis for most resource management decision -making. It is therefore very important that these plans are accurate and well thought out.

We believe that limiting such appeals to questions of law will reduce public participation. The public's ability to appeal on issues of fact and policy is the main way to ensure that local authorities are giving effect to sustainable management principles. The majority of planning appeals are resolved at mediation, without any need for a Court hearing. Poor decisions may result where there is no opportunity to test the evidence put before a Council. The proposals may also lead to a demand for cross examination at Council hearings, and to a lot of interlocutory proceedings which will also make it harder for members of the community to participate.

Furthermore, the appeal process is often a way of sorting out unintended consequences of planning documents - local authorities themselves often appeal their own plans to sort out such issues.

The Bill proposes increasing the filing fee for lodging appeals with the Environment Court to $500. We are concerned that many individuals and community groups may not be able to afford the legal cost of getting fair representation when their local environment may be adversely affected This is likely to further reduce legitimate community participation.

We oppose the fee increase as it will only affect those with limited funds, such as community groups or individuals, and will not deter those motivated by trade competition.

We recommend that clauses 132, 136 and 148 are deleted and that the current right to appeal policy statements and plans to the Environment Court is retained.

4. Clause 148 - Removal of right to make further submissions on plans

The Bill removes the ability to make further submissions in the planning process. Further submissions are an important step in the process, because they give the public a chance to have a say on issues that have only become apparent through the first submissions process. Like the right to appeal, the further submissions process means that issues are fully considered, and results in better quality plans. Surely it is better to have a good plan than to rush through a poorly drafted plan, which will inevitably involve more litigation and poor outcomes for the community, businesses, and the environment. More litigation is a direct contradiction of the stated objectives of the Bill.

We recommend that clause 148 is deleted and that the ability to make further submissions is retained.

5. Clauses 16 and 59 - Rules will not take effect until decisions are notified

The Bill proposes that rules in proposed plans will not have any effect until decisions on those rules have been notified. The intent of this change is to ensure that local authorities have an incentive to complete their planning processes. However, the proposed change could mean a 'goldrush', where developers rush through consent applications to avoid the new regulation, without any regard to the reason for the rule change.

We recommend that clauses 16 and 59 are deleted and that current provisions around the effect of proposed rules are retained. The Government's objective would be better met by putting in place timeframes for local authorities to complete their planning processes.

6. Clause 68 - Improving resource consent processes

The Bill removes the presumption that resource consent applications will be publicly notified. The outcome will be less participation by the public in decision-making.

The Bill also changes the criteria for notification. To be notifiable an application will need to involve adverse effects beyond the immediate environment (rather than the environment generally). This will severely restrict the public's ability to comment on applications that involve 'localised', but potentially environmentally harmful, effects.

This is likely to be compounded by the failure of the Bill to define the limits of 'immediate'. For example, sediment from earthworks for a subdivision in the far reaches of the Pauatahanui Inlet catchment will travel downstream and could have a significant adverse impact on the Inlet. This is a regular occurrence now. Without a legal definition to guide it the Council may define the immediate environment of the subdivision as comprising the whole of the Inlet catchment. That is to say, if the immediate environment was defined only as the land around the subdivision there would be one outcome but if it included also the inlet and its catchment then there would be a different outcome in respect of notification.

The extent of non-notification of resource consents is already a problem for GOPI because it is not able to be treated as an 'affected person' and thus councils do not have to seek our input into their decisions on whether to notify. As a result often we are unable to comment on development around Pauatahanui Inlet which may have adverse environmental effects. Our ability to effectively advocate is compromised. Councils alone decide whether the effects of the activity on the environment are 'minor' - decisions which we have disputed several times on the basis that over time the cumulative effect of several 'minors' on the same receiving environment (e.g. Pauatahanui Inlet) can become 'major'.

We are therefore concerned that the proposed amendments may entrench or even worsen this situation and allow councils to continue to ignore (or to be unable to deal legally with) potential incremental effects of a range of activities.

We recommend that clause 68 is deleted and the current notification provisions are retained.

In fact we argue that amendment to the Bill is required in order to enable community groups to be treated by Section 94 of the Act as a "person [who] may be adversely affected" since they represent the voice of the community on the effect of the activity on the environment of the community as a whole. 

7. Clauses 20, 82 and 83 - Removing the Minister of Conservation's decision- making role in respect to restricted coastal activities

The Minister of Conservation's consenting role recognises the values associated with the coastal environment and only applies in respect of restricted coastal activities. It also recognises the position of the Minister as "landowner" on behalf of the people of New Zealand. The Minister, as "landowner", should be afforded the opportunity to refuse access to the coastal environment (and to collect rents where access is granted).

We recommend that clauses 20, 82 and 83 of the Bill are deleted.

Concern has been expressed that an applicant can go through a very long process only to have the Minister of Conservation say no. This issue might be better dealt with by making a change where an applicant would have to seek the Minister's agreement before making a consent application for a restricted coastal activity.

Clauses supported

We support those clauses which relate to improving the effectiveness of compliance mechanisms.

The Bill proposes:

• increasing the flexibility and scope of enforcement powers and responsibilities
• raising the maximum fine for committing an offence
• giving the Environment Court powers to direct a review of a resource consent where it is connected to an offence that has been committed
• removing the provisions of the Act that protect the Crown from enforcement action.

In our experience, our local councils seem to be able to do very little when resource consent conditions have been breached (for example, discharge of sediment from subdivisions). Anything which enables them to take more enforcement action will benefit the environment.

We recommend that these provisions, in particular clause 141, are retained in the Bill.

We do not wish to appear before the committee on behalf of our submission. The Chairperson may be contacted at (04) 234 1788 if necessary.

Thank you for the opportunity to make this submission.

John Wells
Chairperson
Guardians of Pauatahanui Inlet