Sustainable Wellington Net Editorial 2003-04-17

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Foreword

Our editorial this month gives detailed background information on the Resource Management Amendment Bill No 2, which was introduced to the House last month.

There are a number of clauses in this Bill that will dramatically reduce the opportunities for public participation in environmental decision making. It is vital that people write to the Prime minister and the Minister for the Environment expressing concern on this. Environmental decisions are too important to be just left to politicians and developers.

The Saga of the Resource Management Amendment Bill

Kate Mitcalfe
Environmental Lawyer
Royal Forest and Bird Protection Society of NZ Inc

After languishing for three and a half years on Parliament’s books, the Resource Management Amendment Bill has been withdrawn and replaced. On 17 March 2003 the Resource Management Amendment Bill No 2 was introduced, replacing the original Bill that was introduced in July 1999.

The Resource Management Amendment Bill No. 2 contains many of the provisions from the previous Bill (as reported back from select committee in May 2001). However, there are also some important changes including the re-introduction of limited notification (with a definition for minor effects that incorporates the “permitted baseline test”) and the removal of appeals to the Environment Court for notification decisions (clause 40).

When National introduced the original Bill it included a process to appeal unlawful notification decisions to the Environment Court (rather than judicial review in the High Court) to balance the limited notification provisions. Ironically, Labour has reintroduced limited notification but dropped the appeal process from the new incarnation of the Bill.

Limited notification in the Resource Management Amendment Bill No. 2 reduces participation in resource consent decisions to adversely affected parties where councils consider the effects of an activity will be minor or the activity has controlled activity status. [See section 3 of the Briefing Notes (PDF).]

In the first reading of the Bill on 20 March, Environment Minister Marion Hobbs, said that “as proposals with more than minor environmental effects will continue to be publicly notified, [she is] confident that there will be no additional environmental costs borne by communities.” In contrast, the select committee previously rejected limited notification stating “only 5% of applications for resource consent are notified, and only 3% of land use consents are notified. The majority of our committee does not accept that in 95% to 97% of cases the environmental effects are only minor. We are concerned that the introduction of limited notification would lead to reduced public participation under the Act.”

The success or failure of limited notification depends on what councils determine to be minor adverse effects. Applications that councils have processed without notification in the past, on the basis that the effects would be minor, include the farming of the alien invasive seaweed Undaria pinnatifida in Wellington Harbour and the clearfelling 100ha of pristine native forest in the Catlins.

The Bill misses an opportunity to define minor adverse effects and improve the quality of notification decisions. Instead the Bill codifies the “permitted baseline test” and provides councils with discretion to “disregard an adverse effect … if the plan or proposed plan permits an activity with that effect” (new section 94A).

The permitted baseline concept has been developed by the courts (notably the Court of Appeal in Smith Chilcott v Auckland City Council [2001] NZRMA 503 and Arrigato Investments Ltd v Auckland Regional Council [2001] NZRMA 481). It allows councils to disregard effects that are permitted as of right when determining the scale an activity’s effect in deciding whether to notify an application (section 94) or grant a consent (sections 104 and 105).

The Bill allows councils to disregard an even wider range of effects than contemplated by the courts. The reference to “plan or proposed plan” in new section 94A means that the permitted baseline is no longer restricted to effects that may occur as of right; effects that are permitted under one or other of a relevant plan (but not both) may also be disregarded. This could allow significant proposals to be processed without notification when permissive plan changes, variations or new proposed plans have been notified but have not been subject to any community input.

The permitted baseline test has been developed over the last five years and was not contemplated in the development of many plans. Now permitted activities described in those plans form the environmental baseline for the assessment of new activities (shrinking the discretion of the decision-maker). As a consequence, the permitted baseline test may serve to entrench flaws in planning documents and result in inconsistent and inadequate notification decisions.

It is interesting to note that the Resource Management Amendment Bill No. 2 is silent in relation to the application of the permitted baseline to relation to decisions on resource consents (sections 104 and 105).

The Resource Management Amendment Bill No. 2 is on a fast-track through the legislative process. The Local Government and Environment Select Committee has been directed to report back to the House by 28 April 2003. Officials anticipate that the Resource Management Amendment Bill No. 2 will be passed by the middle of May this year … although, on the basis of this Bill’s history, it may not be wise to speculate.

More Information

Forest & Bird’s Briefing Notes (PDF).