2012
NZPI submission on TAG Report
Susan Houston
1. Introduction
The New Zealand Planning Institute (NZPI) welcomes the opportunity to provide comment on the
report of the Minister for the Environment’s Resource Management Act 1991 Principles Technical
Advisory Group (the TAG).
Established in 1949, the NZPI is the professional organisation representing planners and planning
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practitioners throughout New Zealand. NZPI’s purpose is to provide learning, support, knowledge,
and advocacy for planning professionals within New Zealand. NZPI membership is broad, and
individuals within our organisation have a varied range of opinions and experiences which helped to
inform this submission.
NZPI members play key and primary roles in the implementation of the Resource Management Act
(the RMA). Our members are involved in plan-making, resource consent processes and all other
relevant processes under the RMA; meaning that our members are the best placed to provide
constructive and accurate feedback on the recommendations of the TAG, including an analysis of the
subsequent implications.
The NZPI would welcome the opportunity to meet with you and the Ministry for the Environment
officials to discuss our feedback further. Given our profession’s key role in the RMA, NZPI would like
to engage with MfE as a partner in subsequent policy development.
2. Overall comments
NZPI has overall wide support among its members for the intent of the proposed principles as
outlined in the TAG report and the procedural elements in the proposed section 6. In particular, we
support improved definition of the terminology which will assist to reduce uncertainty and
unnecessary litigation in the longer term. We do note that it remains likely that there will be some
costs involved in new litigation, but that should not be a deterrent to reform and would be
minimised through terminology and associated national guidance.
We note that some of the proposed changes to provisions within existing sections 6 and 7 seek to
clarify aspects of the current provisions of Part II which we believe could and should have been
clarified through the use of national policy statements and supporting national environmental
standards. That is, every section 6 matter should have been supported by more explicit national
direction – this would have avoided the extent of litigation of the interpretation and assessment of
these matters before the Courts. For example, a NPS on Outstanding Natural Landscapes and a NES
on assessment methodology to support a NES would have substantially reduced the amount of time
and cost for all concerned. Should the matters in sections 6 and 7 be amended, we strongly urge
that the government provides such clarification through national instruments to support those
amendments, to avoid the continuation of such litigation and the significant costs and delays to all
those involved in RMA processes that this brings with it.
We also agree that there is a need to remove some matters from sections 6 and 7 that should not be
the pre-eminent concerns of sustainable management. We also concur that there needs to be more
clarity about how RMA addresses the urban environment.
We agree that it is appropriate to take a step back, after more than 20 years, to undertake a more
fundamental review of the Act and consider how the RMA is working in terms of achieving its overall
purpose. However, we question as to whether this should be done in a fragmented way by only
reviewing sections 6 and 7 without also considering the fundamental purpose under section 5.
Given sections 6 – 8 are principles to achieving the purpose under section 5, we consider that any
review, if undertaken, should be more broadly encompassing.
3. Natural Hazards
NZPI supports natural hazards being given more weight in the RMA as we consider that the current
planning framework is not being implemented in an effective manner to manage the risks from
natural hazards. We generally support the TAG’s recommendations and provide the following
additional comments:
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‘Risk’ as it relates to natural hazards should be defined in the RMA, or is alternatively
defined by way of a national policy statement or national environmental standard.
The definition of natural hazards should include liquefaction and tsunami
Councils will need guidance on how to ascertain return periods for natural hazards
Three years is a short timeframe in which to achieve an operative combined plan especially
if data is required to be collected on various natural hazards. If such plans are going to be
effective in managing the risk of natural hazards and avoid lengthy and costly litigation
through the Environment Court, there needs to be clear guidance on risk and risk-based
planning. Such direction definition could occur through national instruments.
The requirement of an operative combined natural hazards plan would need to be carefully
considered if it is also the government’s intention to introduce a requirement for a single
plan for a region.
Section 106 should apply to all natural hazards and to land use consents issued by city and
district councils. We would also like to see the term ‘significant’ defined to ensure there is
consistency in approach throughout the country. We also think recommend that
incremental or cumulative increases in risk should be included within this the s106
considerations.
The proposed changes would be most effective if accompanied by a NES on natural hazards
risks, which would set criteria, methods and rules for natural hazard management, including
appropriate timeframes for return periods. Such an NES would be crucial to ensure councils
could produce a combined plan within a three year time period. It would provide
consistency between councils and reduce the risk of conflicting agendas resulting in
ineffective natural hazard planning and unnecessary litigation.
4. Changes to Part II and the RMA
NZPI considers it important that, before embarking on a review of these sections and introducing
new elements or principles to them, to understand the role that these sections were intended to
play in the implementation of the RMA is understood, and how amendments to these may affect the
intended purpose of Part II and how decision makers exercise their overall broad judgement.
As NZPI understands it, the intent was that the RMA would provide a free market approach subject
to the environmental bottom lines contained in Part II, which was a clear reflection of the neoliberal
economic theories of the late 1980s and early 1990s. The purpose of Sections 6 and 7 was to
establish the parameters within which resource use and development could occur. We concur with
the findings of St Clair and Willis in their 2010 report1 that there is sufficient flexibility in the wording
of Part 2 (and other parts of the Act) to ensure that bottom lines do not act as an inviolable and
disproportionate brake on the pursuit of economic and social well-being. That is, any decision made
under Part II will involve consideration of the social and economic wellbeings from section 5, along
with section 6, 7 and 8 matters, as part of an overall judgement.
1
Ministry of Economic Development and the Ministry for the Environment. Providing National Guidance on
Infrastructure through the Resource Management Act. www.med.govt.nz 2010.
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NZPI considers that the introduction of the new principles relating to the built environment,
infrastructure and the significant benefits to be had from the use and development of natural and
physical resources needs to be considered carefully in terms of whether and how this may change
how the overall broad judgement is actually exercised, particularly if, what are deemed to be the
“protectionist” elements of sections 6 and 7, are removed. The matters proposed to be included
may result in a very different approach to that intended, as section 6 would no longer just include
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environmental values but also social and economic elements.
For instance, proposed s6(h) refers to significant benefits to be derived from … resources. This is
open to interpretation as to what such benefits may be? Are they economic and possibly social? Is
there clear evidence that the benefits are not already being considered in decision making as part of
the overall broad judgement that decision makers are exercising under Part II? If this is the case, we
recommend that this is examined further and would need clarification as to exactly what benefits
are to be recognised and provide for e.g. economic and social. Preceding principles state, for
example, it is the physical, natural or visual qualities of environmental features that are to be
recognised and provided for.
As above, NZPI is concerned that, without further examination, the proposed changes to s6 and s7
may not actually accord with the interpretation and case law in exercising an “overall judgement”
based on weighing of the relevant matters. Rather, it may result in a “balancing” or “trade off”
exercise e.g. physical values against economic benefits. It is critical that above all else this is debated
further and the intention is clear.
Consequently, NZPI considers that, if the Government’s intention is to change the “engine room” of
the RMA in Part II so that there is more emphasis on economic and social matters than is already
provided, then there needs to be a wider consideration of the whole purpose of the RMA; to that
end, we would support a more comprehensive review of the RMA.
5. The role of the Environment Court
We concur with the TAG that it would be appropriate to give more thoughtful consideration to the
role of the Environment Court in the future, particularly in terms of policy development. That the
Environment Court has a role in local policy decision making is unusual compared to the other
jurisdictions of the Courts, as well as to the other policy-making functions of local government. This
is, however, a complex matter as with it brings the need for assurance of the quality and robustness
of decision making at the local level, and that is why we agree with the TAG that further work is
required in this area.
6. Section 6 and 7 changes
We have addressed the overall judgement under Part II in 4 above. In this section we address more
specifically the TAG’s recommended changes to sections 6 and 7.
While we have reservations about some of the recommended amendments that would result in
changes to the purpose of Part II, and in particular sections 6 and 7, NZPI supports the amalgamation
and amendment of sections 6 and 7 into broad principles that underpin the purpose of the RMA.
NZPI also supports the amendments to section 6 to make the matters within all subject to an overall
judgement, as reflects current practice. We also support the inclusion of definitions of the matters
that are contained within it, as these will act to provide certainty of interpretation, achieve better
consistency and avoid unnecessary determinations from the Environment Court.
We also support the strengthening of the role of regional policy statements in this regard, but note
that this would need to be considered carefully if further work is proposed to introduce a
requirement of a single combined plan for a region.
Should the government support the TAG’s recommendation in terms of the introduction of
provisions relating to economic benefits into a new section 6, then we note that this may become
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problematic for the preparation of plans.
NZPI fully supports that the RMA needs to be clearer that its ambit includes the built environment.
Introducing the built environment as a section 6 principle is one way of doing this, if the
government’s intent is to change the overall philosophy behind Part II. However, we supported the
previous Urban TAG report’s recommendation that a national policy statement on the urban
environment be promulgated as another means of providing this direction. Other means of
achieving greater recognition would be to amend:
 the definition of natural and physical resources in section 2 (interpretation) to make it
explicit that physical resources include the built environment
 the functions of regional councils and territorial authorities in sections 30 and 31
respectively to make it explicit that they are required to provide for the planning, function
and quality design of the built environment, including matters of land expansion if necessary
to their region / district.
If the government supports the TAG’s recommendation to amend section 6 as they propose, then
we strongly recommend that the requirement for ‘quality’ is introduced into recommended (6)(j) as
follows:
“the planning, design, quality and functioning of the built environment…”
In moving forward with any changes to section 6, NZPI supports further policy work on the
implications of amendments, such as what are the implications for identification of the matters and
their subsequent management at a district level. We also recommend that the government give
more thought on how to reduce the cost that will be incurred as councils make changes to their
planning documents and different interpretation of the revised and new matters.
To provide certainty in interpretation, consistency in approach and a reduction in litigation and
delays, we recommend that the Government promulgate national instruments such as national
policy statements, national environmental standards and section 330 regulations to provide the
necessary policy direction, methodologies and procedures. From our experience, a lot of the delays
and uncertainties under the RMA has been the result of the interpretation of section 6 matters. For
example, the resulting different methodologies and means of assessment between landscape
architects. A NES or s330 regulation on such a matter as the assessment of outstanding natural
landscapes would act to significantly reduce the level of litigation around this matter, allowing
councils to then focus on to what level such landscapes should be afforded within their region or
district based on an overall broad judgement under the RMA. Guidance, as provided on the
successful and effective Quality Planning Website, is also a key way of providing consistency of
interpretation and application.
For example, of concern is the introduction of the term ‘significant’. We believe that the
introduction of ‘significant’ without clarity of what this means will lead to considerable debate about
how to interpret it, the criteria to measure it, etc. For example, this uncertainty of meaning has
been the subject of significant litigation in respect of what is “outstanding”, what “natural character”
is, what is “inappropriate”.
7. Proposed new Section 7
NZPI considers that the proposed section 7 does not contain principles that support the purpose of
the RMA; rather these are more in the form of procedural duties and methodologies. We appreciate
that the TAG has proposed these amendments to embody best practice principles and case law into
the legislation; however, we feel that the matters contained in proposed section 7 would sit more
comfortably within other Parts (in particular, Part 3 duty and restrictions, Part 5 Standards, policy
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statements, and plans).
8. Plan Integration
NZPI supports further work being done on plan integration, not only between RMA plans but also
between the RMA and the LGA. We are wary of supporting a unitary plan (i.e., one plan for each
region), but do consider that there is logical support for integrated regional and district plans and
consider this warrants some examination of the options or models and implications of each,
including the appropriate jurisdictional boundaries.
9. Process
We appreciate the opportunity to provide comments on the TAG report. Given the significance of
the changes that the TAG proposes and the implications for how the RMA is then implemented, we
recommend that the TAG report is treated as a first step in the review and reform process and forms
part of a wider assessment and evaluation of the level and extent of any changes to the RMA. As
outlined earlier, given our profession’s instrumental role in the RMA, we would welcome the
opportunity to work with Ministry officials on progressing to the next step.
In moving forward, NZPI is currently running a nationwide series of workshops on the TAG report,
thus encouraging debate and engagement between members of the planning profession. We will
provide feedback on this workshop series to you and the Ministry.
10. Conclusion
Thank you for the opportunity to provide these comments to you and we trust that they provide
useful context through the upcoming review and reform process. We would welcome the
opportunity to meet with you and Ministry officials to discuss our feedback more fully. Should you
have any queries regarding the above submission content, please contact either of the following:
Susan Houston, CEO of NZPI by email: susan.houston@planning.org.nz or telephone: 09 5206277 ext
3.
Christina Kaiser, Senior Policy Advisor by email: christina.kaiser@planning.org.nz, or telephone: 09
520 6277 ext. 4.