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Further response to Resource Management Act reforms

The proposed Resource Management Act reforms have received considerable publicity and generated wide-ranging comment.  Following are the responses from the Centre for Resource Management Studies (CRMS) to specific proposals.

Trees

Some “green groups” are upset by the proposal to outlaw the blanket protection of trees in urban areas. We have to wonder how “green” these people really are. This reform will ensure many more trees -and native trees in particular – will now be planted in urban areas.

There are no grounds for such blanket protection in rural areas either. These regulations have simply fed funds into two new parasitical professions – landscape consultants and arborists.

Any real gardener has to be able to manage the trees they plant for all manner of reasons. Many of us moved away from Auckland cities to escape their tree controls so we could plant thousands of trees on our own properties without having to worry about them all growing into “unsustainable resource consents”. Some specific trees may require protection, but blanket rules mean there will be few worth protecting in the future. The same logic applies to Heritage Zones. Heritage listings should apply to individual properties – not to whole neighbourhoods.

Notification

There seems to be a growing understanding of the reversal of the “presumption of guilt” regarding notification. However, it will be interesting to see how many Councils take this to heart and change their current practice.

Presently, reports supporting applications are dominated by arguments as to why the application should not be notified and most of the reporting on applications is dedicated to arguments as to why notification is necessary.

The media releases referred to the present low percentage of applications to reduce anxiety about the reform. The reality is that applicants do everything they can (and frequently compromise the quality of their application) to avoid notification, and if the Council rules the application must be notified many simply give up and simply withdraw.

Financial Incentives.

The proposals to “ping” both anti-competitive objectors, and councils which delay their processing, indicate the Government is considering the wider use of financial incentives and disincentives.

However, the reform package has to recognise that there is currently no incentive for anyone (except the applicant) in the RMA decision-making chain to be cost-effective and efficient. Indeed everyone has a financial incentive to draw things out and make the rules complex and extensive, and generate as much revenue as possible.

For example, one reason Councils want to notify is that notification generates work for Councillors, staff and consultants – and the applicant pays the lot. (In most cases)

If at least fifty percent of processing costs had to come out of rates, and rates were capped, then choices would have to be made.

The Environmental Standards Authority. (Presently proposed as the Environmental Protection Authority.)

We have received many queries about the rights, duties and tasks of the proposed Environmental Protection Authority.

At present it is difficult to answer these questions because we do not know whether the EPA will be another agency operating alongside the District and Regional Councils, or wether it will replace the Regional Councils. We predict that this relationship will be the major area of contention when the Bill is tabled in Parliament. (Watch this space.)

Issues which appear not to have been addressed at this stage.

Housing affordability.

There does not appear to be any proposal to prevent regional councils dictating patterns of growth and development on the basis of the numerous theories of Growth Management and Smart Growth and no proposal to make Metropolitan Urban Limits unlawful.
The reforms appear to target applications and some of the proposals will definitely reduce compliance costs but if Councils continue to strangle lands supply the overall impact of these reforms will be negligible.

However, the recent announcement by Phil Heatley, Minister of Housing suggests Government will address this issue within a package of reform for the LGA, the RMA, the Building Act, and any other legislation which creates the current problems of over priced housing. His media release follows:

Affordable Housing: Enabling Territorial Authorities Act 2008 to be reviewed

Housing Minister, Phil Heatley, said today that along with proposed reforms of the Resource Management Act, the Local Government Act and the Building Act, which will reduce impediments and excessive costs imposed on councils and the building industry, the Government also intends to take a close look at the Affordable Housing:
Enabling Territorial Authorities Act 2008.

“Given the link between all these bits of legislation, I am considering my options regarding the Affordable Housing: Enabling Territorial Authorities Act and will be putting advice in front of Cabinet in the near future,” said Mr Heatley.

“While National is supportive of initiatives that will clearly result in housing being more affordable, particularly for those on low to moderate incomes, local authorities told the previous government that they were already struggling with their current statutory responsibilities and did not have the capacity or resources to undertake things like housing needs assessments.”

“Such a process imposed yet another layer of expectation and responsibility on them, another compliance cost, and another opportunity for delay in processing positive housing development opportunities,” he said.

“This legislation never addressed the real cost drivers of housing supply and I am of the view that it will, in fact, provide disincentives for the provision of affordable housing.”

“Better meeting residential land needs, beating back over-regulation and compliance costs faced by builders, improving infrastructure provision, and streamlining the planning and consenting process are all more appropriate responses than a piece of ‘enabling’
legislation that does nothing to reduce complexity and cost for local authorities and the construction sector to assist with making housing more affordable.”

Development Contributions.

Similarly there appear to be no immediate plans to ban development contributions which presently are the major killer of new developments.
Why would anyone apply to build a twenty room motel if Council demands $320,000 cash in development contributions before it will even issue a building consent?

A Culture of Risk Aversion.

Many of the major criticisms of Council behaviour, such as peer reviews of peer reviews, and requiring expert opinions on everything, are the result of a long-standing legislative approach which seeks to make councils liable for all their actions and for ever.

We can never expect Councils to exercise “common sense” and be efficient and effective while they can be held liable for any and all problems which may develop downstream. We have to move this culture of liability to one in which developers, builders and home buyers accept more liability and develop similar attitudes to those of the boating and motor vehicle industries.

Where would our boating industry be if every boat required a building consent and council had ongoing liability for the boat’s performance for ever?

Powers of Council under LGA.

Now that councils have been given “powers of general competence” under the Local Government Act they are moving rapidly to move into economic and land use planning activities under these powers even though the RMA seeks to keep them focused on environmental effects.

Unless these general powers are restrained, councils will no doubt use the LGA to circumvent many of the good intentions embodied in these proposed reforms to the RMA. An example of the movement into economic planning is the group of local authorities that have committed ratepayers’ funds to bank-rollling Kiwibank into opening branches in rural areas. It seems these councils have not heard of internet banking.

I certainly do not want my rates used, against my will, to subsidise loss-making activities of a Government owned bank.

Assessment of Plans Prior to Publication.

All around the country, plans, structure plans, variations and so on, are published and their costs immediately inflicted on the community, even though the documents may be unintelligible, founded on unsupported claims, and unlawful.

The Centre welcomes the proposed reform which says that such plans will carry no weight until the decisions from the Hearing’s Committee have been notified. Unfortunately, many unintelligible, foolish and unlawful documents survive the hearings process, and because of that, often survive appeals to the Environment Court on the grounds that they have been blessed by community consultation.

This development of bad case law has caused many of the problems we all endure today.

The Centre maintains that such documents should be examined by an RMA Regulatory Assessment Committee of Parliament prior to publication. Otherwise Councils will continue to produce planning documents which subvert the principles behind these proposed reforms and these subversions will eventually be endorsed by case law.

A further safeguard would be to replace the Environment Courts with Boards of Enquiry and limit the development of case law to the regular courts.

Maori Issues.

The issue of special treatment for Maori under the Act has not been addressed, but generally none of these “general principle” issues, such as the purpose of the Act, the items included in Sections 5,6, and 7 and the compensation for takings, appear to have been addressed in this stage and there is no clear indication that they will be addressed in phase two.

Maori should benefit from some of the new disciplines because most Maori households, (like most other households) are simply priced out of the application process. I suspect that if Maori can directly benefit from land use and development they will not be reduced to blocking other participants and consequent “ticket-clipping” as the only route to revenue generation.

Urban Design.

The reference to Urban Design Issues in phase two is scary. This apparently benign term could well be used to undermine any gains made from the present package of reforms.

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