Resource Management Reform Bill

As I was saying before I was so rudely interrupted by the passage of time, we were discussing, in the debate on Part 1 of the Resource Management Reform Bill, what this National Government is doing on the question of tree protection in Auckland. I want to use the remaining time just to underline the point Labour colleagues have made that National is taking an axe to provisions in the local government law that give councils powers where this is an issue—particularly in Auckland on the North Shore, where there is this treasure of a coastal fringe of pōhutukawa forest, and also over in west Auckland and the Waitakere Ranges, where David Cunliffe and I represent the interests of west Auckland. West Aucklanders want to see the urban forest protected and retained. There are very good reasons for that.

Submitters like the Tree Council and the Environmental Defence Society came along to the Local Government and Environment Committee and pointed out not only the intrinsic amenity value of trees and the beauty that they contribute to people’s lives in neighbourhoods like Titirangi but also that they play an important protective role in very steep country like the Waitakere Ranges, which has exceedingly high rainfall. Felling one tree—[Bell rung]

The CHAIRPERSON (H V Ross Robertson): I call the honourable member Phil Twyford.

Just getting warmed up, thank you.

The CHAIRPERSON (H V Ross Robertson): I can see that, Mr Twyford.

Thank you. Felling one tree in the Waitakere Ranges can have a knock-on effect that can affect adjacent properties because the roots of those trees play a very important anti-erosion role. They keep the land from falling down into the valleys and the gullies, because the landscape is quite unstable, the rainfall is very high—

💬 Hon Trevor Mallard: But it’s a good way of making nice flat football fields.

It is not, Mr Mallard, a good way of making football fields. This is a very serious issue for the people of west Auckland, who want to see the urban forest and, in fact, the Waitakere Ranges and the eastern coastal fringe pōhutukawa forests protected for future generations.

Unfortunately, what the National Government is doing with the provisions in Part 1 of the Resource Management Reform Bill is that it is imposing a kind of individual property rights takes all mentality on what people in these parts of Auckland regard as important collective community assets. The urban forest is something that provides enormous amenity and advantages for the whole community. But what National seeks to do with this bill is to take away the powers that councils have had to efficiently and effectively protect the forest by the use of general tree protection rules. It is true that there have been amendments to these provisions that will make it somewhat easier for councils to protect those trees—for example, a grove, a group, a line of trees can be protected—but it still imposes on councils the requirement that they have to list every single section that they want to, where there are trees that are to be protected. It was the submission of councils that came before the select committee that this will effectively make it too arduous and too costly to the ratepayer, for councils to effectively protect all the trees they want to.

After all, that is the intent of the National Government on this issue. It does not want the individual rights of property owners and particularly of property developers, who may want to bowl a line of pōhutukawa trees that may be getting in the way of their cliff top views over on the North Shore, where Andrew Williams come from, or—

💬 Andrew Williams: Maggie Barry comes from there now.

Maggie Barry comes from there now too? OK. Or they may want to bowl a line of native trees on a section in the Waitakere Ranges, which would cause instability and erosion and could have a negative impact on neighbouring properties. So the provisions in this bill are a triumph for the National Party’s narrow property rights perspective over the values that members on this side of the Chamber also support, which are the collective and community assets, the quality of our communities, and, particularly, the ecological asset that the coastal forest and the urban forest represent, which is something that we hold dear and regard as important to safeguard for future generations.

This argument has been going on now for the last few years. In fact, I remember one of the first debates of the last Parliament, in early 2009, when the Hon Nick Smith brought to this House rules that laid waste to general tree protection rules, and which, to a large extent, were subsequently challenged and overturned in the Environment Court. The Environment Court decreed that it was OK for some of the Auckland councils to use general tree protection rules to protect the urban forest, and allowed those councils to circumvent Nick Smith’s aspirations. Well, this bill really is Amy Adams’ revenge on the Environment Court and is one more attempt to impose triumph for private property rights over those of us who would like to protect the urban forest and the coastal forest for future generations. It is just a shame that such an important part of life in Auckland can be put at risk by such a narrow, barren world view that is represented by this bill.

I am speaking to the Committee stage of the Resource Management Reform Bill. Labour will continue to oppose this bill. I do want to mention, however, Supplementary Order Paper 324, which the Minister for the Environment has put up in recent times, and speak to that in particular.

The section that my colleague Phil Twyford has just been speaking to is clause 12. It is an amendment to section 76 of the Resource Management Act, which applies to district rules. The whole purpose of these rules previously has been to protect trees or groups of trees because of their ecological value, and because of not only their ecosystem value but also their ecological, amenity, and aesthetic value. Some of these trees are in groups or lines or are otherwise collected together across a range of properties. So where it may have been easier to say, for example, that all of the pōhutukawa trees that line the east coast, from the harbour bridge in Auckland through to the top of East Coast Bays, could be protected from felling, trimming, damaging, or removal, the requirement is now that trees or groups of trees must be identified by a particular address or unit title.

In the course of this whole discussion about tree protection—and my colleague referred to the impact, as I have before in this debate, of trees that are not on one’s property but the removal of which or even the trimming of which may impact on another property—it goes to show that it is not just the trees at one’s own address that have an impact on a house or a property.

I do want to acknowledge, however, as I signalled a moment ago, Supplementary Order Paper 324, which the Minister has introduced relatively recently. I acknowledge her efforts at trying to address this concern that we have had, and I appreciated the advance notice of the Supplementary Order Paper that the Minister gave me. I think it is constructive. Although we may not approve of the bill in total, we would rather see the bill, if it is to proceed, go with this amendment rather than without it. So, perversely as it may sound to some, we will support this amendment because it does allow the replacement of the words the “group of … trees are described” in clause 12—and this is new section 76(4B)(c)(i)—and that means that instead of just referring to “the trees are described”, it replaces that with “the group of trees is described”. By that, I understand it is the Minister’s intention that this is to apply to groups of trees so that they are not so readily destroyed by the ability of individual property owners to move on their own sections and properties. So I appreciate that effort.

Similarly, in clause 12, new section 76(4D)(a) has, again, the words “regardless of whether the tree or trees,”—or group of trees—“or the allotment or allotments, are also identified on a map in the plan;”. This all sounds a little bit technical, but it does provide for a modicum more protection in terms of the words on the page for groups of trees, and that effort is appreciated.

However, if I just back up a little bit, having spoken about clause 12, which was one of the clauses that received the greatest number of submissions and some of the most vehement advocacy for trees and the benefits that they give us in our communities, one of the concerns that was raised in the course of the consideration of that was the additional expense or trouble that councils might have to go to in order to identify trees or groups of trees by lot or address or unit title in order for them to be protected.

There are some local authorities and territorial authorities around the country that have not done such an exercise previously. They have used only aerial mapping and have identified clumps of trees and groups of trees simply by aerial identification. It is going to mean for some councils and some local authorities that they are going to have to put additional effort, and money and time and resources of all sorts, into this exercise. When I checked with the two councils—one city council, one district council; both unitary authorities—in the Nelson area, where I live and work, this was not a problem in particular for Nelson City Council. It already identifies trees for protection by address, and that is reflected in some other territorial authorities’ practices, but it is not universal around the country. There will be territorial authorities, local authorities, that will find this cumbersome and expensive.

There is one other clause that I wish to speak to at this point, and it is clause 11. It is the bit about it amending section 53 of the Resource Management Act. Clause 11 is entitled “Section 53 amended (Changes to or review or revocation of national policy statements)”. New section 53(2) says: “The Minister may, without using a process referred to in subsection (1), amend a national policy statement if the amendment is of minor effect or corrects a minor error.” This has some concern attached to it because it means that if the amendment is of minor effect or corrects a minor error, the Minister is able to do that without any consultation process, which is usually required for the development of a national policy statement about any environmental matter, whether it is the quality of water or air quality or whatever else it is that the Minister wishes to make a national policy statement on. She is able to do that without consultation—without a consultative process attaching to it. So we are left to work out whether or not the Minister’s judgment of a minor effect or a minor error is a sufficient safeguard for people in determining a change or review or revocation of a national policy statement.

This is a serious matter, and it is one of the things that has caused us concern during the course of this resource management bill. It received a few mentions in submissions. Obviously, people were very exercised by the protections of trees and not as many of them focused on this, but still, in all, certainly the Environmental Defence Society did issue a paper quite early on in the process that said that it found this ability of the Minister to amend a national policy statement if she considers the amendment to be of minor effect or to correct a minor error to be of some concern and that national policy statements should be subjected to a consultation process both in their development and in any rescinding or revocation or alteration to those. So that was another matter of concern.

But I started to say before that I wanted to back up a wee bit and just go through some of the figures that pertain to resource management consents. Those have been catalogued elsewhere and I will come to those again later.

When we were previously considering the Committee stage of the Resource Management Reform Bill, I made a mistake and said that the bill would allow the Minister to call in medium-sized projects and appoint a board of inquiry to consider them. That was incorrect, and I apologise to the Committee for the mistake. The bill provides for a 6-month deadline for decisions on medium-sized projects, including ones that are notified for public submissions, but it does not provide for a call in. But I would like to make some comments on these medium-sized applications and the provisions around direct referral to the Environment Court in clauses 13, 14, and 15. The Green Party opposes these provisions as being anti-democratic and likely to reduce public participation. The bill enables applicants for medium-sized projects above a yet-to-be-defined investment threshold to avoid a council-level hearing and refer a matter directly to the Environment Court. It removes the relevant council’s power to decline that request, except in “exceptional circumstances”, which are not defined.

An Environment Court hearing is by its very nature much more formal and prescribed than a council hearing. There are a lot more lawyers, there are a lot more people in suits, and it is more expensive, and this constrains the public right to participate because of that expectation that people will have legal representation. This focus on the value of investment as being the threshold for direct referral to the Environment Court, putting the application on a decision-making track that is quite different, is putting the economic value of the application ahead of the public’s right to participate and be involved in the decision on whether that application should proceed. It is a very arbitrary threshold for an Act that is supposedly based on effects, and it is not a good determinant of the complexity of an application, nor of its potential effects. As Greenpeace noted in its submission, a project that has higher economic value will often have many more effects, and more serious effects, than one with a lower value. So potentially you should be encouraging public participation on those more complex projects, not restricting it by this direct referral provision. It is definitely eroding the power of councils and local authority decision-making to say that this is mandatory and that they cannot decline consent to a direct referral except in exceptional circumstances.

There is also a risk that it will impose significant workload issues on the Environment Court by having more applications go directly to it, but we are also concerned about a number of other provisions in this bill that affect and seek to restrict public participation. One of those is in clause 49, which introduces the concept of a person who is directly affected by an effect. It can restrict participation in the Environment Court to parties who are directly affected. Often that has been defined in relation to people who have got a private property interest, such as a neighbouring landowner, rather than a community organisation representing an aspect of the public interest. So this clause is quite a noxious clause and, in our view, a very unacceptable restriction on public participation and access to justice.

I think what we are seeing here is the Government being quite contemptuous of our international treaty obligations. At the Rio+20 Earth Summit, New Zealand and more than 190 other countries adopted The future we want outcomes document. That document says in paragraph 43: “We underscore that broad public participation and access to information and judicial and administrative proceedings are essential to the promotion of sustainable development.” That builds on very similar commitments in the Rio Declaration on Environment and Development of 1992. The bill is trampling on that because of clauses such as clause 49, but also because of the major push in the bill to be quite restrictive around time frames. That is all about providing certainty for applicants but not for the community or the environment that is affected by those applications.

The National Government and the big corporates have run a very deliberate campaign of misinformation about the Resource Management Act and about decision making under the Resource Management Act under recent years. We have heard time and time again from Government members talk about the costs, uncertainties, and delays, but they do not talk about the cost to the community or the environment from speedy decision-making. That is because the National Government is focused very much on the short term. It does not understand that if you want a smart economy, you need to underpin that with a healthy environment. You need to look out 50 years ahead. You need to recognise the importance of the ecosystem services that nature provides—clean air and clean water—and the need to safeguard those services, not just rubber-stamp development like mining and drilling, and big developments along the coast, which cut across those.

So there are major parts of this bill—and the whole thrust of the Government’s changes to the Resource Management Act in this bill, and the proposed bill that is to be introduced later this year—where the National Government is sabotaging our economy. It is undercutting and trampling on environmental quality at a time when we should be giving integrity to our “100% Pure New Zealand” brand. Instead, the Government is weakening our environmental law, rather than strengthening it, which would help give integrity to that brand.

At the moment, this is all about pushing through applications and changing the deadlines. In the Act at present we have time frames for specific parts of the decision-making processes at council level, but there is not a set period of time in which a decision should be made when it is made at the council level. There is a very good reason for that. Often applicants will change some of the aspects of their applications in response to the concerns raised by submitters through the whole process, but the bill is imposing a 6-month deadline for councils to consider and decide medium-sized applications. That compares with the 9-month deadline for applications going to the board of inquiry. Like Local Government New Zealand, we oppose that, because we are not convinced that there is a problem with timeliness in the Act. When you have got the Ministry for the Environment’s own survey of local authorities in 2010-11 showing that 95 percent of all applications are processed in accordance with the statutory time frames, that 87 percent of the notified applications were processed on time, and that more than 99 percent of applications are approved, there is not a major problem with timeliness. Certainly, the National members pull out anecdotal examples of small applications that may have taken a while, but there is no solid policy analysis in the regulatory impact statement to support this restriction on making the decision within that 6-month period.

It is not good enough, in our view, to beat up on councils. When the Waikato Regional Council analysed its data about when the time frames in the Act were exceeded, it found that one of the most common reasons was that applicants could consult with interested or affected parties after they had lodged their applications. Again, it is because of those submitters raising issues and the applicant responding. So, as Local Government New Zealand said, the bill is trying to legislate for good practice. This is inevitably difficult and arguably pointless when that practice cannot be validly prescribed in detail, because a single practice will not be universally applicable. The deadlines that the bill is implementing are very complex. They will make the Act more difficult to administer, rather than simpler, which is supposedly what this Government’s agenda is about. By controlling the time frame in this way, what the bill is doing is pushing councils to rubber-stamp applications, to not consider their effects appropriately, to not go and subject those to good scrutiny, but instead to just push applications through as if the council were a sausage factory and to actually restrict the ability of communities to engage properly.

Under the bill, applicants will be able to ask for extensions and for the clock to stop in terms of the processing, but a council will have only one opportunity to stop the clock and ask the applicant for further information. Often those requests for further information come in response to submissions from the community and the public where they say that these issues are important to them and that these environmental effects will occur, and that the applicant has not considered those properly and has not done an adequate assessment of effects. But having the mandatory 6-month deadline for medium-sized applications and having these restrictions on the council asking for further information is going to lead to applications being rubber-stamped.

I would like to follow on from my colleague the Hon Maryan Street and my Green colleagues and have a look at clause 13 of the Resource Management Reform Bill, which is on investment thresholds. Clause 13 requires consents over an investment threshold to be directly referred to the Environment Court. This level will be set by regulation, allowing it to be freely changed by the Minister for the Environment. Based on the submissions to the Local Government and Environment Committee, basically there are two main concerns: one is a lack of definition as to what constitutes an investment threshold, and the second is the regulation-making powers of this so-called “Henry VIII” clause. So there are two main concerns.

It is unclear why an investment threshold is chosen, rather than other measures, such as environmental impact. Currently, major projects that are not of national significance can go through a direct referral process and avoid the need for a council hearing. This amendment under the current bill is to circumvent the requirement of a council’s permission.

I would like to take this opportunity to thank the officials for their great efforts and for their thorough analysis and advice. A significant number of submitters commented on this particular clause, and I should say that they had mixed views about the changes to the direct referral process. Basically, of the 57 submitters on direct referral, only 22.8 percent were in support, and if we are taking into consideration those who gave conditional support, that probably amounts to 40.3 percent. But, overall, 22.8 percent of the submitters were in support, and 50.9 percent of the submitters were in opposition.

Submissions from local government were generally of the view that the proposed changes were an erosion of locally based decision-making and would reduce the ability of councils to make important decisions for local communities. They considered that the clause went against the philosophy and the principle of the primary Act and was a watering down of the role of councils. They considered that the discretion that councils currently have to decide whether to agree to a request for direct referral should be retained.

I would like to cite some submissions to support what I just said, and in return to support what the submitters wished to express. Basically, as I said, there are two general concerns. One is a lack of definition as to what constitutes the financial investment threshold and what constitutes exceptional circumstances. Submitters have felt that without this it was difficult to provide a fair and informed response to the proposed change. For instance, Southland Regional Council wanted the parameters of a value of investment and exceptional circumstances defined within the Act, and this view was held by other district and regional councils. Some submitters felt that non-monetary factors should be recognised in the threshold. For instance, Christchurch City Council felt that the financial value of a proposal should not be the sole determinant of whether an application is directly referred. There may be other reasons as to why a proposal should not be directly referred, such as social and amenity considerations. Wellington City Council opposed the constraint on a council’s power to decline a request. It also questioned why costs should be the overriding factor, instead of, for example, the level of effects, number of affected parties, or consistency with the district plan. I would like to continue with the Tasman District Council, which felt strongly that establishing an investment value is arbitrary and not necessarily a good proxy for complexity or potential contention.

Rotorua District Council raised in its submission a very important point, and I wish to bring that to the attention of the Committee. Rotorua District Council recommended that the threshold be district specific. The threshold in Auckland, for example, may be quite different from the threshold in Rotorua. Environment and conservation organisations of “New Zealand Incorporated” considered that the Resource Management Act is an effect-based Act, and it is not fair to others or to the future to make the choice of a process contingent on the investment. The Bay of Plenty Regional Council considered that it will require additional work for councils in assessing whether an application meets the threshold or in making a determination around exceptional circumstances. Otago Regional Council submitted that there is already a suitable process in the Act in section 357—the objection process—to refer applications directly to the Environment Court. As such, the Otago Regional Council opposes the proposed changes and requested that they be rejected. The committee of the Auckland District Law Society stated that it was not aware of any issue where direct referral requests were being refused unreasonably by local authorities, anyway.

So, basically, there are two main concerns: one is a lack of definition as to what constitutes an investment threshold, and the second is the so-called “Henry VIII” clause—the regulation-making powers. Thank you.

I move, That the question be now put.

I rise to speak on Part 1 of the Resource Management Reform Bill. I am a qualified planner. I am very familiar with the Resource Management Act, and I would be the first to admit that there are a whole lot of areas for improvement, both in district plans and in our urban planning process. But, unfortunately, this reform bill, put forward by the National Government, is another perfect example of its inability to understand or define properly what the problems are, and then address them in a coherent, intelligent way that is going to deliver a smarter, greener environment for New Zealanders to live in, and a smarter, greener economy that is going to enable us all to look after ourselves in the generations to come.

As I said before, I would be the first to admit that planners have been a big part of the problem over the past few decades. Unfortunately, the biggest problems that they have introduced in district plans are not at all addressed by this legislation. So it is very easy for the Government to go out and say that it is cutting red tape and it is going to make life easier for the average Kiwi, but, in fact, these provisions in this bill do the exact opposite. They are going to increase costs for average Kiwis. They are going to increase rates because they increase the costs for councils. A perfect example of this is the tree protection provision, which actually makes it much more difficult and costly for the council to ensure that there is adequate tree protection.

We have major issues with stormwater in our towns and cities in New Zealand because we get a lot of rain. I am not sure whether there are any people on the National side who have ever looked at stormwater management or who have any understanding, but as soon as you start cutting down trees, you massively increase the amount of stormwater run-off, which then has to go through our stormwater system, which is paid for by ratepayers, or it just flushes out to sea. So if we have individual landowners looking to cut down trees, because they would prefer to do that, it has an impact on the entire community, and it has an impact on the management of stormwater in our community. Over time, as we lose tree cover, we not only lose important ecological services that are performed by trees, we not only lose the amenity that New Zealanders absolutely value and are very concerned about preserving, as we are looking at increased intensification and development pressure in Auckland, but also, very practically, the consequence down the road of a council like the Auckland Council not being able to manage trees could quite logically be that we have increased stormwater run-off and increased costs to ratepayers. So on the one hand we have the National Government putting pressure on local councils, saying they should keep down their rates, but on the other hand it is actually taking away their ability to manage development in such a way that would reduce the economic costs and the environmental costs of stormwater run-off by ensuring that there are enough trees to take that water. So it is a perfect example of where the rhetoric is the exact opposite of the reality.

The National Government is going to increase costs to councils in the first instance, because now councils have to go through this intensely bureaucratic process, which is, as they said in their own submissions, costly and impractical, onerous and unworkable, and involves huge amounts of time and resources. I am sure that ratepayers around New Zealand do not appreciate the National Government making legislative changes that are going to increase costs for councils and therefore increase rates.

There is no joined-up thinking in National. It is looking for short-term gains and an opportunity to claim that it is reducing red tape. But the reality is that the Resource Management Act, with all its imperfections, already allows most applicants to do whatever it is they want to do. Over 95 percent of applications for resource consents are granted, so how can one say that there is a problem, when rich developers and property owners are able to do exactly what they want? I agree that processes could be improved.

A perfect example of an area that is not addressed in the Resource Management Reform Bill is the onerous cost of parking restrictions, which is the single-biggest trigger of resource consent applications. You would think that National would care about reducing the burden of costs on developers and, perhaps, reducing the single-biggest trigger of resource consent applications, which are not grounded in any economic rationality but are simply a hangover of a 1950s car-oriented approach to transport planning, which has reduced the ability of New Zealanders to have good, affordable transport options. If National was able to look beyond its blind ideology, it would address this problem. It would ensure that developers were not forced to provide huge off-street car-parks when they do not want to. Local landowners, people looking to build houses—right here in Wellington, a staff member in our office told me that they went to build a house and the council was telling them they had to put in two car-parks, which was basically impossible.

So here is an opportunity, an opportunity for the Government to do something in line with its own ideology that would reduce costs, reduce the burden to ratepayers, and reduce the burden to taxpayers from a car-oriented transport system. Instead, what is it doing? It is creating more bureaucratic nonsense for councils to go through to look after trees, which are essential not only for amenity but for stormwater management.

Of course, this legislation also increases the bureaucratic analysis needed for a section 32 analysis with regard to the Resource Management Act, but it is looking at opportunities only for economic growth and employment. Unfortunately, the additional requirements for this type of assessment, rather than increasing certainty and increasing the soundness of the judgments that are being made, could quite likely require a level of detail to such an extent that it is actually impossible for local authorities to undertake an adequate necessary risk analysis. Again, it is an example of ideological rhetoric undermining good outcomes. I think that there was a whole wealth of submissions on this bill that were very informed and demonstrated that the approach taken in this reform bill is not one that is going to have the result of achieving a better outcome for New Zealanders. It is not going to reduce costs in reality. It is not going to improve councils’ ability to ensure that local communities can look after the development that is happening, and ensure that it is occurring in a way that is going to be good for generations to come.

We also do not support the changes in this legislation that are going to make it harder for local communities to engage in the process of decision making around resource consent applications. Best practice in the most livable cities overseas, like Vancouver and in many communities in Europe, shows that the more that neighbours and stakeholders can be engaged at the beginning of a process—whether it is for major infrastructure or whether it is for a major development—the better the outcome achieved for the entire community. We are going in exactly the wrong direction on the basis of some narrow, ideological, rhetorical slogans from the National Party, because it is not the party that actually delivers good, smart, green outcomes for New Zealand. It is simply the party that waves its hands around, claims to be solving problems that are not even problems, and provides no analysis to support the changes in this legislation. Instead, it just gets on with it, and gets a worse outcome for all New Zealanders. That is what I have to say.

I move, That the question be now put.

A party vote was called for on the question that the question be now put.

I raise a point of order, Mr Chairperson. I thought votes were meant to be taken in silence.

Yes, I was going to give an admonishment when we had finished. Votes—and points of order, but votes particularly—need to be heard in silence for two reasons, which I have been at pains to point out to the Committee. No member in this Chamber will vote under duress, but, more important, we just simply sometimes do not hear the votes. So voting will be done in silence.