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RMA Amendment Bill – 2009 submission

Committee Secretariat, Local Government and Environment Committee, Parliament House, Wellington

Submitted by:  Richard Keller

RMA Amendment Bill

I oppose the bill.

The first question must be “who” benefits from this bill.  The informal name of of the bill, “Simplifying and Streamlining”, gives that away given the type of changes proposed.   The effect of the changes proposed will make it harder for Iwi and other communities, public interest groups, and the silent (the environment)  to join in the process.

But a sustainable future will be rooted in local decisions which take a long term view; a future democracy will lie in the local.

So it is clear that the intention of the bill is to benefit large developers and big projects where more wealth can be accumulated into the hands of the few, similar to what we see with the current dominance of financial institutions.  This is contrary to the needs of creating a sustainable future and of encouraging democracy.

Sections opposed

1.Security of Costs

Delete Amendment clause 133 (which repeals section 284A of the Act).

2.   Elimination of council duties to summarise and respond

Delete Amendment 148

3.   Reduction in public notifications

Delete new section 94

4.   Remove public interest group power to join case

Delete clause 131

5.   Restrictions on appealing plans

Delete clauses 132 and 136

6.   Removal of “non-complying” category

Delete clauses 147 and 152

7.   Removal of the presumption the resource consents must be notified

Delete clause 68

8.  Removal of Conservation Minister’s right to say ‘no’.

Delete clause 20

Please see attached discussion of these items.

Sincerely,  Richard Keller

1/4/2009

Discussion of sections opposed.


1. Security for costs

The Amendment
The Bill would allow the Environment Court to require a bond be paid before an appeal is heard. However, the Court already has the power to dismiss “frivolous and vexatious” objections in RMA 279, and 33 cases were struck out under 279(4) between 2006 & 2008.

Discussion
This amendment will reduce participation of people with legitimate causes. A Court demand for a bond will prove an insurmountable cost barrier to many community groups. Developers will use the threat of security for costs to intimidate groups from appealing decisions.

Example
Because of security for costs requirement, a Wellington community group withdrew from appealing a landfill application on odour concerns. Those concerns later became a major problem.

Change Required
Delete clause 133

2.  Elimination of Council   duties to summarise and respond to submissions and to call for further   submissions on resource plans and policies.The Amendment
Public participation is a principle of the RMA, hence consents are notified   by default except where effects are minor. The Bill will make   non-notification the norm.Discussion The publicly stated rationale for   this is to save time and to have Plans and Policies be finalised quickly, but   the further or “cross-submission” process allows the community, individuals,   businesses and others to indicate to the Council whether they support or   oppose a proposal and points made in submission by others. This also enables   councils to identify parties with which these issues should be further   discussed.. This process and the summarising of submissions is an essential   process for good plan and policy development.

Change Required
Delete clause 148

 

3. Reduction in public notification

The Amendment
Public participation is a principle of the RMA, hence consents are notified by default except where effects are minor. The Bill will make non-notification the norm.

Discussion
The Bill will undermine the core principle of public participation despite the majority of consents not needing notification. By making non-notification the norm, fewer consents will be notified resulting in less public say and poorer decisions.

Example
Recently in New Plymouth a 90-apartment hotel (with a public bar) in a residential area was not publicly notified, and only stopped when the developer withdrew for financial reasons.

Change Required
Delete new section 94

4. Remove public interest group power to join case 

The Amendment
The Bill removes the ability of community groups representing the public interest to become party to an appeal if they were not a submitter.

Discussion
Community groups have limited resources and sometimes struggle to submit on everything. At times they will have good grounds for joining an appeal by another group.

Example
Reputable public interest groups like Forest & Bird at times use this ability to join a case. It is important that their expertise and public interest is represented.

Change Required
Delete clause 131

5. Restrictions on Appealing Plans   

The Amendment
The Bill restricts the right to appeal a Council Plan decision to only points of law. Appeals on broader grounds can only be taken with the leave of the Environment Court.

Discussion
This reduces public participation – a core principle of the RMA. A party cannot appeal on substantial matters without going through a Court hearing to get leave. Plans will be poorer because of it, and the environment will suffer. This may also clog the Court with leave applications, and slow down Council planning processes.

Example
This year, after an appeal against the Waitakere Council plan, the Environment Court reduced the number of subdivisions in the Waitakere Ranges. The appellants may have been prevented from taking this case under the amendments.

Change Required
Delete clauses 132 & 136

6. Removal of “non-complying” category

The Amendment
The RMA categorises planned activities. The Bill removes the ‘Non-complying’ category, which is for activities that require a higher standard than control or discretion, but are not prohibited. After 3 years all ‘non-complying’ activities not yet re-categorised will default to weaker protection.

Discussion
Defaulting to discretionary lowers the environmental bar, but ‘prohibited’ may be too harsh. Non-complying fills this gap. The change is unnecessary, and will result in onerous plan changes costing time and money. Removing it complicates rather than simplifies, so is contrary to the intention of the Act.

Example
The ‘non-complying’ category was important in the Waikato Regional Plan to control nitrogen leaching farm activities. Some activities did not fit rules in other categories.

Change Required
Delete clauses 147 & 152


7.  Removal of the   presumption the resource consents must be notified will mean even fewer   consents are notified. The AmendmentThe Bill proposes to remove the   presumption in favour of notification (section 93) – already less than 5   percent of consent are notified.Discussion

The Courts have used the presumption   in favour of notifying to support notification of consents when councils have   not notified significant decisions. The proposed changes in clause 68 gives   local authorities powers to write non-notification into Plans, and that in   the case of proposed section 94AAC actually prohibit notification when   effects are considered to be minor. This means the community will have no   chance to participate in assessments of whether effects are minor or not, and   councils can be prosecuted for notifying consents if it is found that the   effects are in fact minor when a council judged them other wise.

Change Required
Delete clause 68


8. Removal of Conservation Minister’s right to say no

The Amendment
The Minister of Conservation has authority on behalf of the ‘owner’ of the coast, the public, and therefore makes decisions on restricted activities like sewage discharges or marinas. The Bill removes this power, leaving Regional Councils as the sole decision-maker on coastal activities.

Discussion
The public & conservation interest is represented by the Minister. Regional Councils should not have complete control over coastal activity, esp. contentious issues like sewage & marinas. Improvements are required to the process, but this amendment is not the answer.

Example
In Whangamata, the Minister decided to stop a marina in order to protect the public and conservation interest. Unfortunately, this decision was overturned and a native-forested estuary with endangered skinks will become a private marina.

Change Required
Delete clause 20

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