Resource Management Reform Bill

I want to make some comments about Part 2 of the Resource Management Reform Bill, which amends the Local Government (Auckland Transitional Provisions) Act 2010. It puts in place a framework for the development of the first combined plan for Auckland Council, known publicly, I think, as the draft Auckland Unitary Plan. Specifically, what it does is it establishes a fast-track process for the unitary plan with the establishment of a hearings panel—a kind of one-stop shop hearings panel—which takes the place of the normal Resource Management Act Environment Court appeals process. Labour supports this provision, and we have made it very clear publicly since the Auckland Council asked the Government to consider this back in December last year that we give qualified support to the proposal for the fast tracking. I will tell the Committee why.

The Auckland Unitary Plan is a very significant development in the life of the new amalgamated Auckland super-city. The unitary plan is the successor to all the old district and regional plans, and people will remember that having one plan for Auckland was one of the great selling points for the amalgamation, which led to the Auckland super-city being set up. It allows for an integrated approach to managing land use and managing growth in Auckland, for the first time ever. I think it is widely accepted, certainly on this side of the Chamber, that this is one of the significant benefits of the amalgamation of all the old local territorial authorities in Auckland.

The unitary plan is significant because it is the first time that Auckland has had a concerted, comprehensive, and considered effort to manage its growth. The growth of Auckland and the poor regulatory framework that has existed until now is really at the heart of many of the big problems that are affecting Auckland, particularly around housing affordability, which is probably one of the worst.

The unitary plan contains a raft of measures for tackling affordable housing, and, importantly, it deals with the problem of the constraints on land supply, which lie beneath the very high prices for residential property in Auckland. The history of that, I think, is the old metropolitan urban limit, which was a fixed limit, a boundary, around the city, and that, together with a failure over many years to intensify and build a sufficient quantity of new houses in Auckland, and given the forces of supply and demand, was a recipe, unfortunately, for the very high residential property prices that are plaguing Aucklanders to this day.

So the big innovation in the unitary plan gets rid of the old metropolitan urban limit, which Nick Smith has been railing against for months and months as such a terrible thing, without mentioning that the old metropolitan urban limit is gone. It is a dead duck. It is supplanted in the unitary plan. It is Nick Smith’s convenient straw man to attack and try to blame Auckland Council for the current housing crisis when in fact the draft unitary plan, which is the first major kind of planning instrument of the new Auckland Council, gets rid of the metropolitan urban limits and replaces them with what the plan describes as the Rural Urban Boundary.

The important innovation here is that the Rural Urban Boundary really is a staged shifting of the city limits that successively introduces large volumes of greenfield land in a planned, staged fashion over the life of the 30-year plan, which will bring quantities of greenfield land—

💬 Andrew Little: Sounds sensible.

—that is right—and provide the land that is necessary for Auckland’s growth and development.

So that is a really important piece of the puzzle to understand—that the unitary plan delivers in a staged, careful fashion the new greenfield land that Auckland needs for its growth and development. This is not what National Party members including Nick Smith, the current Minister of Housing, have called for, which is a kind of wholesale destruction of the city limits, a deregulation of the planning process, the effect of which would simply be to allow suburban sprawl to rip across the countryside, to Whangarei in the north and down to Hamilton in the south. That is the last thing that Aucklanders want to see. So that is a really important feature of the unitary plan.

The essence of the proposal that Auckland Council brought to the Government at the end of last year was a streamlining of the process around this plan. Under the existing law the Auckland Unitary Plan could take between 7 and 10 years to bed in, given the scale and complexity of the plan, and given all the rights of appeal under the Resource Management Act it could be a decade before that bedding-in process is complete. It is my submission that that is unacceptable, for a number of reasons that I want to spell out.

The Auckland Council has undertaken a big public process of consultation and engagement. Part of the trade-off for limiting appeal rights to the Environment Court, under the Resource Management Act, was to front end the plan-making process with an array of public meetings and online consultation. I attended some of those meetings, and certainly there was a genuine concerted effort to engage with communities, to engage with stakeholders, and to really democratise those early stages of the plan-making process.

It has been really interesting in that we have seen with the Auckland Unitary Plan the first ever major public conversation in our country’s biggest city about the future shape of the city. You may not agree with the details of the plan, you may not like the way the town centres are categorised, you may not like the new proposed rules on intensification, and you may not like the proposal for high-rise development in some town centres, and so on, but there is no doubt that this has been a groundbreaking process for Auckland and the first time there has been a major public debate.

It is worth noting, I think, that on the pages of the New Zealand Herald every day and on the major television networks we see these issues. The issues of urban development, housing affordability, sprawl versus intensification, and the relationship between transport and urban development are on the front pages of the newspaper and on our television and radio news bulletins almost every day. They are such a major feature of public debate, and I think that Len Brown and the Auckland Council deserve significant credit for opening up this conversation and leading in a way that, frankly, we have not seen in Auckland ever before in our lifetimes.

One of the things that is most important and that, I think, justifies the fast tracking is that we have a housing crisis in Auckland right now. There is no doubt about it. We have some of the most unaffordable housing in the Western World. The unitary plan, as I said, has a raft of measures for dealing with housing affordability, and Auckland needs those now. So that is the first reason. What I would say is that it has been rather amusing to see the National Party’s apparatchiks in east Auckland and the North Shore, amongst local government circles, throwing themselves in front of the metaphorical bulldozer to try to stop and slow down the unitary plan process, when in Parliament the National Party has been wanting to speed it up and has been threatening Auckland Council with legislative intervention every day almost, and urging Auckland Council to speed up the very provisions that exist in this unitary plan, because the Government is so scared about the macroeconomic impacts of the Auckland housing crisis.

That was by way of a digression. But Labour does support the fast tracking because, firstly, the housing crisis deserves extraordinary measures, and, secondly, Auckland has already been through an election campaign. An extensive public process went into the making of the Auckland plan, and, as I said also, with another process around the unitary plan it could take 7 to 10 years—[Bell rung]

The CHAIRPERSON (Eric Roy): Are you seeking another call?

I am seeking another call, Mr Chairman.

The CHAIRPERSON (Eric Roy): In the absence of a challenge, I will give you another call.

That is very charitable of you, Mr Chairman. As I said, it could take between 7 and 10 years for this plan to be finally bedded-down under the Resource Management Act, and that is just too long for Aucklanders to have to put up with. That is why we support the fast tracking.

There are two issues on which the National Government baulked in terms of Auckland Council’s proposals. The first is that Auckland Council proposed that the unitary plan be given legal weight from notification. The plan has been through all its processes and it is going to be notified next month, I understand. It goes out for people to consider and then respond to, to the hearings panel and, ultimately, goes to the Environment Court.

But under the Resource Management Act, prior to 2009, the plan would have had legal weight from notification. That does not mean it is operative, it does not mean that it has legal effect; it means that it will be taken into account, along with other operative plans, when consenting decisions are being made. That is critical, particularly for the considering of consents for housing developments for affordable housing, in light of the Auckland Council’s urgent need to respond to the housing affordability crisis.

It would have been the case pre-2009, before National changed the law, that the plan would have had legal weight. And that is why, and it is worth noting, that we had all the theatrics from Nick Smith earlier in the year when he went rampaging around the place, accusing Len Brown of crushing and destroying the dreams of Aucklanders to have affordable housing. He was trying to shift the blame for the housing crisis on to Auckland Council because he was so desperate to try to have something to show that the Government was doing something about housing affordability. Well, if it had not changed the law in 2009, this plan would have had legal weight from notification.

Secondly, the other thing is that Auckland Council proposed that it should appoint the members of the hearings panel—after all, it is Auckland’s plan; after all, Aucklanders, through their rates, will pay for this plan and everything that the plan entails. But no, this Government in its centralising, nanny State way, insisted on having sole prerogative to appoint the members of the hearings panel. And instead of Aucklanders being able to make that crucial decision, Amy Adams and Nick Smith, two South Island Ministers, from the comfort of their ministerial offices in Wellington have hijacked this process by insisting that they have the exclusive right to appoint the members of the hearings panel.

I just think that that is a real shame, and it is symptomatic of this Government’s troubled relationship with Auckland that it did not trust Auckland Council to appoint the members of the hearings panel, and, in fact, spurned Auckland Council’s proposal that the appointment of the hearings panel should be done jointly by the Government and by Auckland Council. I think that is a real shame. It is Aucklanders’ plan. They are paying for it. Why should the democratically elected Auckland Council not be able to make that vital decision? It is typical of this Government’s arrogant and interfering approach not only to local government generally but to Auckland particularly that they have insisted on keeping those powers to themselves.

Labour supports the fast tracking of the plan, but we do think it is a shame that this Government could not see its way to share the process of appointing the members of the hearings panel. We think it is a shame that on the crucial issue of allowing the plan to have legal weight from notification, the Government did not go along with Auckland Council’s proposal. In fact, because of that, we have had to go through this whole palaver around the Government’s Housing Accords and Special Housing Areas Bill, which itself would not have been necessary.

This whole fuss that Nick Smith has taken us all through is because the Government did not agree to the draft unitary plan having legal weight from notification. Now we have to go through this whole special housing areas bill that Nick Smith has before the House currently, and all it does is cherry-pick aspects of the unitary plan, i.e. bringing in more greenfield land—

Kia ora. I am really excited to take a call on this Resource Management Reform Bill. In this bill is a proposal to develop a one-off hearings process for the first Auckland Unitary Plan. This is a streamlined process for developing and making operational the first plan, which develops a set of consistent planning policies and consistency of rules within a workable time frame. But what I am really excited about is that once the Auckland Council has developed a plan, it will be referred to a hearings panel in consultation with the council and the Māori Statutory Board. So although I hear my colleague Phil Twyford across the way say that it was arrogant of the Ministers to not refer to Aucklanders, well, in actual fact, they did. The Māori Statutory Board is very much part and parcel of the make-up of Tāmaki-makau-rau, and, as we all know, the Māori Statutory Board is made up of the iwi of Tāmaki-makau-rau and the mātāwaka, so it is very much a part of Auckland and Tāmaki-makau-rau.

We are also a party and a Government that has worked hard to develop its relationship with iwi, and this bill is an example of that strengthening of iwi relationships. Iwi are fully involved from the initial stages, not as a tack-on or an addendum. Iwi will be at the table and again through the appointments of the hearings panel. I want to reiterate that this bill allows Māori interests in Tāmaki-makau-rau, Auckland, to be considered at the beginning stages, earlier on in the process, and, as I said earlier, not as a tack-on or as an addendum. Again, Auckland, Tāmaki-makau-rau, Auckland mātāwaka, and the herenga waka will be considered earlier in the resource management planning process, with solutions developed up front with iwi consultation and iwi input.

This bill is about the timely delivery of the Auckland Unitary Plan. It is the council’s main tool for achieving integrated management of the region’s natural and physical resources, and we know that. It provides rules for what whānau can do on their whenua and on their properties. So I thank the Minister for the Environment for bringing these reforms to the House. Kia ora.

I want to follow up on some comments that Phil Twyford made in respect of Part 2 of the Resource Management Reform Bill—

💬 Hon Maurice Williamson: Just to correct them.

I will not respond to that interjection. This bill gives form to the way in which the new Auckland Unitary Plan is going to be brought into final effect. As Phil Twyford has said, one of the problems that the Government has caused for itself through an earlier stage in the Resource Management Act reforms was that until it passed one of its earlier so-called reform bills, new plans had transitional effect from the date of notification; therefore, they had legal weight even before they became fully operative. The Government thought that that introduced unnecessary complexity and said that it needed to have more simplicity, and so it said that proposed plans did not have any transitional effect, even after notification. Of course, the folly of that is shown by what is needed to be done now in respect of the other bill that is introducing and giving effect to parts of the Auckland Unitary Plan outside of the Resource Management Reform Bill.

But I just want to make another observation as to why that is an inadequate response. I am sure a number of members in addition to me were at a lecture sponsored by Auckland University with Harvard Professor Edward Glaeser, who was in town recently. He was asked the question as to whether land supply was important in respect of growing cities in order to moderate the cost of housing, and he agreed that it was. Everyone agrees that. There is actually no one I am aware of who denies the proposition that land supply is not an important ingredient. Indeed, the Labour Party has been on record in respect of that position for a long time. In fact, we were calling for the new Auckland Unitary Plan to be given effect before the Government belatedly agreed to do so. But the problem with what the Government is doing in respect of land supply alone is that, as Professor Glaeser said, more important than issues around land supply at the margin of the city are rules that limit intensification of land use within the existing city boundary.

The problem that the Minister in the chair, the Minister for the Environment, has—and I would like her to respond to this point. I want her to admit that during the period prior to Auckland Unitary Plan becoming operative, none of the provisions relating to intensification of land use within the city boundary will have any legal weight. That is my understanding of the effect of this Resource Management Reform Bill, and it is also my understanding of the companion bill in respect of the Auckland land supply issues, the Housing Accords and Special Housing Areas Bill. None of it deals with the more important issue—according to the Auckland Council, and Professor Glaeser confirmed this—that most of the increases in housing stock in Auckland will come about through more intensive use of the land that is already serviced with telecommunications, roads, public transport, sewerage, car parking, and electricity. Those areas of intensification within the urban limit of Auckland are predicted to be the predominant source of new houses, new apartments, and new flats. They are going to be within the existing boundary of the Auckland Unitary Plan. Even after the Government—if it does—passes its Housing Accords and Special Housing Areas Bill, most of the new supply of housing is going to come from within the boundary, and that relies upon changes that are in the new Auckland Unitary Plan that aid the intensification of land use.

Rules such as where there is an existing house that might have a basement or an attic area that is quite suitable for having a flat put into it—the planning rules around building a flat under a house within the existing exterior boundaries of the house—are currently quite complex. There are quite long and arduous routes for applicants if neighbours object. The plan rules are not facilitative of those sorts of intensification of land use, and the Auckland Unitary Plan fixes that. But because of the inadequacy of this Government, both in respect of its refusal to assist Auckland in implementing those parts of its plan and because of its prior amendments to the Resource Management Act, those parts of the new Auckland Unitary Plan are of no legal effect for years—for years.

So despite the fact that the Government knows that from the advice from the council, from the advice from its own officials, I expect, and from the advice from world experts like Professor Glaeser, all saying that intensification within city boundaries is more important than the admittedly necessary extensions to the city boundary in respect of greenfield land supply, and despite the fact that the council knows that that is more important, it is not fixing it. So that is one of the reasons why house price inflation in Auckland is double digit and why we have got deposit requirements being required by the Reserve Bank in excess of 20 percent for most first-home buyers. It is because of its concern at the inflation in the Auckland house market putting at risk the financial stability of the banking system, and its effects on the wider economy. We have all of these flow-on effects because the Government has not been doing its job for 5 years in respect of resource management and the Auckland plans around housing.

I want the Minister in the chair to take a call. If I have got it wrong and the rules relating to intensification of land use in the Auckland Unitary Plan are being advanced through this legislation, like the rules are in other legislation in respect of special housing areas, then take a call, Minister, and tell me that I have got it wrong. But my understanding is that the intensification of land use is not facilitated by this. Indeed, we still do not have any of those rules having any legal effect until the new Auckland Unitary Plan becomes fully operative, to be contrasted with where it was before the Government mucked it up with its last Resource Management Act changes.

Speaking to Part 2 of the Resource Management Reform Bill after quite a truncated debate on Part 1, it is about the Auckland Unitary Plan process. I endorse the comments made by Phil Twyford and David Parker. It is interesting that the Government is all about simplifying, streamlining, fast tracking, and providing certainty for applicants, but in terms of providing any certainty of regulation, having the unitary plan apply when it is notified, and having the rules have weight on notification rather than when the whole process is finished, of course the Government does not want to do that, and so it has not made that provision in the bill for the rules to have weight when it is notified, which we oppose.

I would like to talk about the whole plan process and the appointment of the hearings panel, because the bill has got quite specific provisions around the unitary plan in order to streamline the plan process and to reduce community input. It gives the Minister for the Environment and the Minister of Conservation very significant control of the process because, of course, it is the Ministers who are going to appoint the hearing commissioners. They will determine how much they are paid, and they will set the terms of reference for the hearing commissioners, not Auckland Council, even though it will be Auckland Council that is paying those commissioners. The whole fast-track process that the bill provides for the unitary plan is certainly not one that the Green Party is enthusiastic about, but it has accepted and not opposed it, because of the wide range of public support for that and for getting a plan finalised in order to recognise that the bigger Auckland now needs a plan promptly.

The bill provides, with the Ministers having control of the appointment process, an example again of the very centralised, anti-democratic decision making that this Government is becoming. Part of its whole image now is of very centralised decision making, shutting out the public. Our preference is for the Auckland Council, not Ministers, to appoint the hearings panel. I have proposed a very modest and reasonable compromise in Supplementary Order Paper 281 that the Ministers and Auckland Council jointly appoint the hearings panel. I would like the Minister in the chair, the Minister for the Environment, to say why that is not a reasonable proposal, because it would be much more democratic, given the mandate that Auckland councillors have from those who elect them, and that it is Auckland’s plan, not the Ministers’ plan. The joint appointment process would much better represent a partnership between central government and local government than the very command-and-control approach that is this Government’s favoured modus operandi.

If you look at the departmental report, it says that Ministers should appoint the hearings panel to ensure that the panel is “fully independent from the Council” so that “the panel’s recommendations will not be biased towards the Council.” But having a panel appointed by just Ministers risks its recommendations being biased towards those whom the Ministers and the Government will favour. The joint appointment process in Supplementary Order Paper 281 would avoid that. So that is why we are asking the Minister in the chair to seriously consider this joint appointment process and say why it is OK for the panel’s recommendations to be biased towards those that the Government would agree to but not that it be biased towards the council. This whole appointment process is yet another example of the disdain that this Government has towards local democracy and how it is grasping and grabbing power for the executive and centralising decision-making. It has become a real hallmark of this Government.

The other issue I would like to talk to is the whole way in which the scope of submissions operates in the bill, because it is clause 125 that puts a new provision in the Local Government (Auckland Transitional Provisions) Act to allow the hearings panel on the unitary plan to make decisions that are beyond the scope of submissions on the proposed plan. It can effectively make a decision on any matter that the panel identifies through the hearings process. This is an extraordinary, broad power, and it is a very substantive and inappropriate departure from existing law. All of the 31 submitters who commented on this provision expressed concern about it because it is giving the hearings panel unfettered discretion. When you combine that with the fact that Ministers are appointing that panel, that is giving it huge scope to influence Auckland’s future by the decisions that it makes, recognising that the Auckland Council’s ability to appeal those decisions is very limited and is only on the basis of the decisions that it disagrees with.

When you have got a power of the Environment Court to make recommendations outside the scope of submissions, parties are given an opportunity to comment on, and respond to, those recommendations, but the bill does not provide an equivalent provision for the hearings panel to invite such comment when it is proposing to go beyond the scope of submissions. That is a very broad extra power that is going to this hearings panel. It blurs the whole boundary between adjudication, which is a proper role of the hearings panel, and plan making, which is the Auckland Council’s role. So Supplementary Order Paper 283, in my name, seeks to limit the hearings panel to making recommendations that are within the scope of the submissions by deleting this decision-making power to go beyond the scope of submissions. That would make the whole decision-making process much more robust because the hearings panel would have to base its decisions on issues that were raised by submitters and that had been the subject of evidence that was presented by the submitters and tested through the submission and hearing process.

The other issue I would like to comment on is the whole status of the Auckland Spatial Plan, the Auckland Plan, and section 140 in clause 125. You have got the Government talking about simplifying and streamlining. If the Government was genuinely interested in that, rather than in promoting an anti-democratic, anti-environment, anti-community agenda, it would have responded to the submissions of Local Government New Zealand and the Auckland Council asking that the hearings panel give more weight to the Auckland Plan than simply ensuring that regard has been given to the spatial plan, as section 140(3) in clause 125 currently provides. We need to ensure that the unitary plan is consistent with the spatial plan, because of the very high level of public and community support for that plan and because of the way that it is an integrating document. As Local Government New Zealand identified in its submission, you have got a problem in local government planning because the Local Government Act, the Land Transport Management Act, the Local Government (Auckland Council) Act, and the Resource Management Act do not talk to each other, yet the spatial plan does that integration and seeks to have much better planning because of that integration.

The spatial plan is quite a comprehensive and long-term strategy for Auckland’s development. It looks at the present and future mix of residential, business, industrial, and rural activities within specific geographic areas of Auckland. It looks at how you integrate that with essential infrastructure services and investment, with transport, with open space, and with water supply and waste water. The unitary plan is the critical tool to ensure that Auckland Council can achieve the outcomes that it set out in the spatial plan, and that spatial plan was developed through quite widespread engagement with the community and with stakeholders. Simply ensuring that the hearings panel just has to have had regard to it is not giving it enough weight. It should be that the hearings panel has to actually ensure that its decisions on the unitary plan are consistent with the spatial plan, as Phil Twyford highlighted, because of just how that plan will shape the future of the city.

The other issue I would like to comment on that will affect the way in which the Auckland Council operates is just the way in which the bill in Part 1 looks at how environmental reporting will be done. We want robust environmental reporting and we want independent environmental reporting, but we do not like what the bill does here, because it will give the Minister the power to use regulations to specify what a council will monitor and how it will do that, what environmental indicators the council is required to monitor, and what standards or methods will apply to each of those. There is no opportunity for parliamentary scrutiny on those measures, and given the opportunity for the ministry and the Minister to influence that through regulations—

I take a call on Part 2 of the Resource Management Reform Bill. I want to speak in terms of some of the comments that have been made in relation to the Auckland Unitary Plan, compared with the seven local authority plans and also the regional council plans that it replaces.

Many people would say that Auckland was not functioning under the former plans. That statement is incorrect. Each of the local authorities had robust district plans that had been brought into place over many, many years, which were a result of widespread consultation with their individual communities. The plans of Manukau, of Waitakere, of Auckland City, of North Shore City, of Franklin, and of Rodney were all, in their own right, substantial plans that suited their particular communities but now, under one Auckland Council, there is a requirement to merge those into one plan, and as a result this is what we are seeing before us today.

However, there are concerns—widespread in Auckland. When sitting on the Local Government and Environment Committee we heard from many, many submitters including submitters with extensive and lengthy experience in local government and in resource management, including Queen’s Counsel, including some of the brightest legal minds in terms of New Zealand, in terms of planning, and in terms of the background to local government, who submitted that there were quite a few concerns about the Auckland Unitary Plan as it stood, and that in many instances it certainly fell well short of what was a robust document that would withstand scrutiny.

In that regard we do support the situation that when the plan gets notified in the next few months it is not then in effect given the greater operative weight—to become the overarching document—until the hearings are fully completed. We heard that from many sources, who said that the existing rules that are in place around Auckland would otherwise just be completely trodden on and the safeguards that communities currently have would literally be pushed aside if this plan took greater weight than from when it was notified.

In that respect there has been huge push-back from the people of Auckland, from communities all across Auckland, who have said that the first drafts of the plan had some grave errors. The errors included that something in the order of 47 percent of the properties across Auckland had the potential to have intensive development, up to potentially 10 metres high, on urban properties and on suburban properties. Also, without notification to any property owners, the property right next door to you could be purchased by a developer and could be intensified, and structures could be put up, up to 10 metres high, under the proposed plan, without you being aware until literally the day the bulldozers moved in and started work.

It is unacceptable to any community, whether you are in Auckland or whether you are anywhere in New Zealand, to have a situation where you are not given the opportunity to at least have some input into what is being proposed next to your property, if it is outside what has been established standards in all these areas of Auckland over many, many years. Sure, Auckland is going to grow and it is going to have an increasing population, and there does need to be some intensification in areas. We agree that around many of the town centres and many of the urban centres there will be greater intensification and there will be higher buildings built closer to those transport hubs in those urban centres. But it does not mean, in the same breath, that people who have been used to living in their suburban homes should suddenly be subject to apartments going up next door, without any due process being in place.

Therefore, in terms of this Auckland Unitary Plan—going through this process with the hearings, which will take in the order of 2 to 3 years to complete—it will mean that at the end of that process everyone will have had their full opportunity to have their day before the court, effectively, to put their submissions properly to the plan, as the plan is notified, and for that document to then be properly thrashed out so that the final operative plan that is put in place does have total and full scrutiny.

It is somewhat concerning, and people have said this, that areas involving heritage aspects, areas involving trees, and areas involving intensification around town centres have not necessarily been identified to a suitable level. It is also concerning that some existing structure plans, which have taken an awful lot of work to get to where they are today, have the potential of being trodden on. I give as an example the Long Bay structure plan, which has 2,500 homes being built at Long Bay, one of the largest subdivisions in the country. More than 6,000 people potentially will be living there. It took close to 7 or 8 years of negotiations with the developers to finalise that plan so that there was a totally modern practice in terms of how that significant tract of land would be developed to include all modes of transport, to include parks, to include reserves, to include view shafts out to the Hauraki Gulf islands, and to ensure that it ended up as a modern 21st century development.

That proposal also included a very significant court case through the Environment Court with the North Shore City Council and the Todd Property Group, which ended up with a very, very good result for all parties, which saw the whole community buy into it in the end, and that resolved a situation for the community—not just the North Shore community but people from all over Auckland—who loved Long Bay.

Long Bay is the busiest regional park in the Auckland area. More than a million people a year go to that particular regional park, and they wanted to ensure that the urban intensification around that park was certainly kept to the best it could be in terms of the effects on the coastline, on the marine reserve nearby, and on the environment of that part of the northern part of Auckland and of the North Shore.

Under this unitary plan and what was proposed, all that work over 6 or 7 years was basically going to be thrown out the window, and this unitary plan was simply going to be put in its place. The whole area of Long Bay was going to be just swallowed into the unitary plan, and the standards and the rules of the unitary plan would have been trodden on in terms of the Long Bay situation—7 or 8 years of hard work would have been literally for naught.

As a result of this, I am sure that when this process goes through the proper hearings process and goes before the commissioners, that will be revisited, as will all the very good aspects of the likes of Long Bay. There are many other similar structure plans of new developments around Auckland that will similarly see their opportunity to be readdressed in terms of what those communities expected from those particular developments. We will not have just a one-stamp-meets-all approach to Auckland. They will still recognise the fact that different parts of Auckland do have different requirements, their communities have different expectations, and as a result we hope that there is a good outcome from that.

We have some reservations about the fact that the Government has not allowed the appointment of local commissioners as well as central government - appointed commissioners on this. We feel it would have been advantageous to have a mixture of commissioners, so that there was both local input and central government input into this very, very important plan of what is our largest city. Time will tell whether the decision of the Government to not include locally appointed commissioners is the right one. Aucklanders certainly will not appreciate commissioners being appointed from other parts of the country, who will not necessarily have the full understanding of the implications of the plan on the local communities of Auckland if it is not treated with respect in relation to local situations. We certainly hope that the commissioners who are appointed have a very, very high level of understanding.

It is my pleasure to speak on the Resource Management Reform Bill. I want to focus on the Auckland Unitary Plan, which is a very, very important document for the city and, indeed, for the country. Housing is an issue for all New Zealanders to be concerned about. If inflation in housing in Auckland is out of control, that ultimately leads to increasing interest rates, which causes ripples throughout the New Zealand economy. Making sure that we have got on top of that issue is a very serious priority for this Government. The Government has been guided particularly by the work of the Productivity Commission in looking at housing affordability. There are lots of factors, but the supply of land is an important one, so I commend the work of Nick Smith in conjunction with Auckland Council on the plans that he has got there to free up supply and get the houses built so as to make housing more affordable for Aucklanders.

The unitary plan is a very important part of that mix in the long term, and, depending on how good a plan it is, it may help or it may hinder Aucklanders to get into their homes. It also affects their lives in so many, many different ways. The first iteration of that plan that we saw certainly was not perfect. There is a sense that maybe the council has bitten off more than it can chew. I am certainly concerned about extra costs being put on. In the drafts that I have seen there is a requirement, I understand, to have new commercial buildings have five-star ratings for a green status. That is not exactly the way, it seems to me, to make sure that we can build properties and get businesses into factories and offices as cheaply as possible. We need to have flexibility, rather than necessarily having ideological blinkers from planners demanding that they do things x, y, and z, regardless of the cost.

There has also been very significant concern in the community, particularly around Epsom, where I am based, about some elements of the intensification. There is a real balance to be struck between spreading out and intensifying. I am not sure that it has got it right, and again I am concerned about some of the ideological blinkers of some of the planners who, if they are not carefully controlled, could lead to the housing dreams of many New Zealanders being lost. So I am amazed that anybody would think it would be a good idea to make the plan operative immediately on notification, given the size of the task and the scale of it—

💬 Phil Twyford: Not operative—legal weight. It’s different.

—or to have legal weight, even. I think the Government has absolutely got it right in not taking that step.

We have heard a lot of complaints from Mr Twyford and others, moving to the issue of the hearings panel, that somehow the council should be appointing all the hearings panel people. That would be, I think, a dreadful outcome. They are setting the rules. It is very important that this process has clear independence.

💬 Phil Twyford: Arrogance.

It has nothing to do with arrogance. It is about making sure that Aucklanders, in a plan that will affect their lives over the next three or four decades and that has been proposed by the Auckland Council—very strong direction from the Auckland Council about what it wants to do. It is about intensification. It is about all sorts of plans and theories. It is very important that Aucklanders can see that there is an independent group of highly qualified people who can go through that plan line by line. The council can advocate for its argument, but people can see that there is strong independence there, and I think that is absolutely appropriate.

The Local Government and Environment Committee did hear a lot of submissions on this, and we have made some significant changes around some of the opportunities for reviewing some of the hearings panel’s decisions. So if the hearings panel is making a recommendation outside the scope of submissions, then it has to make it very clear that it is. Then we recommended changes to section 150, inserted by clause 125, which I think are important to provide a clear right of appeal to the Environment Court where the Auckland Council has amended a provision recommended by the hearings panel. We also recommended enabling a merit-based appeal to the Environment Court where the hearings panel makes a recommendation identified as out of scope, because people were concerned that, in the original plan, if the hearings panel just dreamed up something new and there had not been debate, and suddenly the panel passed it and the council agreed, then we would have a lack of appeal rights. So we have made those changes. We are also aware of the concern about the combined effects of section 139, inserted by clause 125. We have made significant changes, and on that basis I commend this bill.

I rise to speak to Part 2 of the Resource Management Reform Bill. There are two parts of this bill that Labour has been particularly concerned about. One we have addressed, and addressed unsuccessfully, in Part 1 of the bill, and that was around protection of trees. The second part that concerns us is actually the swipe at local democracy that is contained in Part 2, which is the bit under discussion at the moment and which covers Auckland transitional provisions. Before I get on to clause 125, which I want to deal with in some detail, I want to first address clause 124, which talks about transitional regulations. Transitional regulations are always problematic, and it is my great hope that one day the National members of the Regulations Review Committee will allow us to do an inquiry into transitional regulations, because they are the place where the devil lies. In other words, they do contain the detail of a bill. We are all familiar with that expression that the devil is in the detail.

Transitional provisions do allow Governments to put in by regulation something that does not come before this House for scrutiny. This was one of our concerns originally. It caused us to draw attention to this in the Local Government and Environment Committee minority report, in the commentary at the beginning of the amended Resource Management Reform Bill as it now sits in front of the Committee. In that minority report, we said that we originally had concerns over this bill because it vested in the Minister the power to make regulations that could conceivably pervert the original intention of the Resource Management Act in one of these “Henry VIII” provisions. But that power was amended by the Local Government and Environment Committee, so some change was achieved by the select committee. In particular, clause 124 inserts subsection (6A) in section 5, which states: “In addition, the Minister for the Environment must not recommend the making of regulations under subsection (4) unless he or she has first consulted the Auckland Council and the hearings panel (if it exists then) on the proposed regulations.” That is an improvement, but we are still left puzzled as to why legislation to turn other transitional provisions into primary legislation, such as the Local Government (Auckland Council) Amendment Bill (No 2), which was introduced to the House for its first reading on 5 June of this year, before this report—the report on the Resource Management Reform Bill—had even been submitted to the House. So that legislation I have just referred to—the Local Government (Auckland Council) Amendment Bill (No 2)—should be blended with the work in this bill in order to ensure that unnecessary amendment is not required later.

My particular concerns lie with clause 125, which is very substantial. Clause 125 goes on for page after page after page, because it inserts a new Part 4. So while we debate today Parts 1, 2, and 3 of the bill, this is, in Part 2, the addition or the insertion of a new Part 4. This is where some of our concerns become obvious, because they are about the role of the Auckland Council—a democratically elected body—to have some say in the process for development of the first combined plan for Auckland Council. Of course, the Auckland Council has had a very robust and quite profound public consultation process over the development of its plan. That is to be commended.

What I want to do is speak in favour of Eugenie Sage’s Supplementary Order Paper 281. Quite simply, and yet quite profoundly, she seeks to insert the words “and Auckland Council” into every part of this clause, which is clause 125, section 115, but also the new section 155 of the Resource Management Act, where the Minister for the Environment and the Minister of Conservation have powers. She has recommended in the amendment on Supplementary Order Paper 281 that at every point where the Minister of Conservation and the Minister for the Environment have powers, the Auckland Council be included in those powers, and that there be some sharing of power in the decisions that pertain to both of these clauses.

So first of all, in clause 125, section 115, there is the ability for Auckland Council to forward all relevant information to a specialist hearings panel appointed by the Minister for the Environment and the Minister of Conservation. This is the first moment in this part of the bill where Eugenie Sage’s Supplementary Order Paper seeks to insert “and Auckland Council”, so that a specialist hearings panel would be appointed by the Minister for the Environment and the Minister of Conservation, and the Auckland Council. This Supplementary Order Paper really begins to find its feet beyond that mention when we get to clause 125, section 155, which is all about the setting up of a hearings panel. It seems to me at every point to be absolutely not just a matter of right for the people of Auckland but a matter of common sense that a body as large as the Auckland Council, representing a population as large as that, ought to be involved in the appointment of hearings panels that are going to determine whether an application is able to go ahead. So at every point in that section, and in section 157 as well, and in section 162, which involves consultation, the member Eugenie Sage simply seeks to reinforce democracy. Her Supplementary Order Paper has our support in that regard.

Finally, I would also like to talk to the member Eugenie Sage’s Supplementary Order Paper 283. This is the one that talks about the scope of the hearings panel. Currently, in the bill as it is, it says that the hearings panel is not limited to making recommendations only within the scope of the submissions made on any proposed plan, but it may also make recommendations on any other matters relating to the proposed plan identified by the panel or any other person during the hearing. So, in other words, people can come and present a hearings panel with ideas that have never been considered previously, and there is the ability of the hearings panel to consider things that are outside the scope of the plan. So this could be taken to mean any number of things—for example, let us add a residential development block here, when we are actually talking about a park or a green area. This really opens a floodgate, and that is closed if we can see our way clear to supporting the member’s Supplementary Order Paper 283, which requires that the hearings panel considers only things that are within scope and not outside of it. That is a common sense and legitimate amendment to make. The bill as it stands in that respect—

I just want to take a call on Part 2 of the Resource Management Reform Bill to respond to the last few speakers we have had on this issue of the appointment to the hearings panel, because I do think it is an important process and it is worth taking some time to respond to. I think that when you look at this, you have to start off by acknowledging that the process that we are developing in this legislation and through this part began because the Auckland Council came to the Government and asked us to develop an expedited process. It was the Auckland Council that wanted the Government to work with it to come up with a legislative framework that would mean that this plan would not take 10 years to be in place, but could be delivered much more quickly. We agreed that that was an important objective, so we worked with the council to deliver this process.

Effectively, what it does is take what would have been a two-stage hearing process of a full round of submissions, mediations, hearings, and decisions at a council level, and then have all of that replicated once more at the Environment Court level, and combine it into one process. I do not think there is anyone who has sensibly suggested that the Auckland Unitary Plan, if it had progressed under the normal schedule 1 process, would not have gone off to the Environment Court. So what you have to consider, in actual fact, is that without this, the decisions under the unitary plan would have been made by the Environment Court. Of course, it is trite to point out that the Auckland Council does not get to appoint who sits on the Environment Court to hear the decisions. So in that respect, the fact that the Auckland Council is not the appointer of the final decision-makers is absolutely consistent with the normal schedule 1 processes.

In fact, I would go so far as to say that the Auckland Council and the independent Māori Statutory Board have a greater ability to be involved in the appointment of the decision makers in this process, because there is a statutory requirement that the Minister for the Environment and the Minister of Conservation must consult with both the Auckland Council and the independent Māori Statutory Board on making those appointments. So what we had to do was balance the desire of Auckland Council to be fully in charge of this process versus what we saw was about protecting the rights of Aucklanders to have confidence that the final decision-makers were independent, as they would be at the Environment Court stage. So I do not think it is a fair comparison to look at this appointment process versus an Auckland Council process. It is a far better comparison to consider how this process works versus an Environment Court process, which would have been the final decision-maker. Just to repeat: of course, in that process, Auckland Council would have had no say at all as to who the decision makers were and in the plan process. I do not think that it can be fairly suggested that it would be appropriate for the Auckland Council to have the say on who is the judge and jury on what is also its plan.

So if we are going to combine a council plan process and an Environment Court process into one, in my view, the independent oversight that the Environment Court hearing represented was a critical component of what had to be maintained. That is why the decision was reached by Cabinet, and, believe me, this was a process of ongoing discussions with the council around these very issues. So this is not something we have not considered; this was something that we worked through very carefully with the council. We listened in great detail to its representations, but it was our strong view that it was important that that independence that you would have had at the Environment Court was replicated in this process.

Can I just point out to members of the Committee that while this legislation is making its way through the House and without making any presumption on its progress, we have already begun some initial preliminary consultations with the council. Obviously, there is an awareness that the council is very keen to get its plan under way, and we certainly do not want to be a barrier to that, so we have begun a process of discussing with the council whom it would want to suggest for that board. Those processes are working very well. I have great confidence that we will come up with a board that has the support of all parties, and that is certainly my intention. But I did want to make the point that we absolutely considered this issue. We talked extensively with the council around it, and there are very good reasons why we made the decision that it is more appropriate that the council not be an appointer of decision makers on its plan.

Thank you, Mr Chair, and thank you for that contribution from the Minister in the chair, the Minister for the Environment. I think there is still room for this plan to be appealed to the Environment Court, and that is in the bill. It is where the council does not agree with the decision of the hearings panel, or where the hearings panel makes a decision that is outside the scope of the submissions.

I would like to say that this bill, the Resource Management Reform Bill, and how it impacts on the Auckland Unitary Plan is basically another classic example of Auckland being discriminated against. We have seen this time and time and time again with this Government. We have seen it with the Auckland Housing Accord, we have seen it with the Land Transport Management Act, and we are seeing it now with the unitary plan.

The hearings panel will be appointed by this Government. I acknowledge the Minister’s comments that there will be consultation with the council, but at the end of the day the panel will be appointed by the Government. In every other council and with every other unitary plan, it is the council that determines those who will hear it. This is Auckland being discriminated against. The hearings panel can make recommendations on issues that are outside the scope of submissions, which is not terribly democratic, given that no one will have commented on those issues that are being raised by them. On the other hand the bill explicitly prevents the council from doing the same. It is not allowed to make decisions on evidence that has not been through the hearings panel, so it is pretty clear where the Government places its faith. It places its faith in the appointees whom it has appointed to hear the Auckland plan.

I would also suggest that this Government is seeking to undermine local government in Auckland through the recommendations that it is making, and it has actually stated them pretty clearly in the Local Government and Environment Committee’s report. The recommendations say that “… section 139 [makes] it clear that the hearings panel must specify where it is making a recommendation outside the scope of submissions,”, and later on in that same paragraph it says: “[We] recommend amending section 143 to prohibit the council, in making its decisions, from considering new evidence or any other material that was not available to the hearings panel. This is intended to reduce the likelihood of the council making decisions based on inappropriate political lobbying, and ensure that it follows fair process …”. This is really interesting. I will just read it again. It is to not make decisions “based on inappropriate political lobbying,”.

This is the same Government that is making a law on the International Convention Centre with a process that was fairly truncated, as well—

The CHAIRPERSON (Lindsay Tisch): Order!

I am coming back to the bill in a second. I was using that as an example of inappropriate lobbying—the sort that this Government seeks to avoid by restricting Auckland Council in its decision making.

The hearings panel is able to have extended decision-making powers, and my colleague Eugenie Sage spoke about this as well. The ability for the hearings panel to make decisions on things that may not be included in the submissions basically comes down to its plan making, rather than it blurring the division between plan making and interfering. I think we need to take into account the fact that these panel members will not be appointed by the city council and they will be making decisions based on their own judgment. It is not something that happens in other areas when they are considering their own unitary plans.

The other area that I want to comment on is the fact that this bill does not actually take any real notice of the Auckland Spatial Plan. The Auckland Spatial Plan, the 30-year plan that was developed with huge input from people right across Auckland and with enormous effort—and, actually, at huge cost as well to the Auckland Council, because it was directed under the Local Government (Auckland Council) Act—determines and gives a broad outline of where and how our city should develop over 30 years. Under the previous Act, which said that Auckland had to do this, we were given a time frame that was incredibly tight. At the start of that process, when I was actually a Waiheke local board member, we were told the time frame and we were also told that in other cities like Vancouver this took 8 years to get it right.

Auckland Council has done an amazing job to deliver, as required by the Government, an incredibly useful and sensible plan, which we should be giving weight to. We should be having a unitary plan that is consistent with it. All it says in this bill is that the Government will give regard to it, and I guess that is actually something that, again, undermines democracy in Auckland.

There is one part of this bill that I do agree with, and that is leaving the Hauraki Gulf islands unitary plan out of it. And, yes, of course I am slightly biased, being a resident of the Hauraki Gulf. The Hauraki Gulf islands are actually in a much better position, because we went through a democratic process to get our plan. It was quite a painful process, I have to admit. There were thousands and thousands of submissions. The hearings took over 2½ years. I would like to acknowledge in this Committee Mr Ray Ericson, who was on that hearings panel. He was the chair of our community board and then our local board. He was an elected representative hearing from his community what the issues were and how we wanted to develop our island communities for the future. It strikes me as incredibly unfair that Auckland—this new super-city, which was created by this Government through its legislation, requiring Auckland to jump through so many hoops—and its people do not get the same access to democracy. Thank you.

Thank you for this opportunity. I am happy to take a short call on Part 2, “Local Government (Auckland Transitional Provisions) Act 2010”, of the Resource Management Reform Bill. My colleague Maryan Street identified that the theme that seems to be emanating in our debate here on Part 2 is the need to protect local democracy and also the need for central government, or this Government, to recognise that local government has a significant role to play—that local government does have a viable role to play in the development of our communities. I think that when talking about Part 2, it is fair that we need to reflect on how Auckland came to be a super-city. It was from this Government imposing upon Auckland a structure that many Aucklanders did not feel comfortable with. It was rushed at the time, and, really, it was designed, according to many of the communities, to flock off the assets that the Auckland community has.

💬 Chris Hipkins: Flog off.

Flog off. It is fair to say that the community rejected the proposal by this Government and elected Len Brown as mayor. I think it is important to acknowledge the significant work that the mayor and Auckland Council, including its chief executive officer, have had to go through and undergo, particularly when you consider they brought together eight local territorial authorities—significant units in themselves—and tried to make that work despite the difficult situation that they were in.

I highlight two things—the need to protect local democracy and the need to recognise local government as a significant and viable partner in the development of our community—because I listened to the response of the Minister in the chair, the Minister for the Environment, and that gives away the focus of this particular Government. It does not at all want to recognise that communities have a right to make their local decisions. I think that we are recognising the importance of local government as a viable partner in development, so I would ask the Minister whether she would be prepared to respond with regard to the submission made by Local Government New Zealand and say whether she considered any of the recommendations that were put to her in that submission, and whether any parts of that submission were included in Part 2. The submission of Local Government New Zealand highlighted five key matters, with reference to clause 122, in Part 2: the moratorium on variations under the proposed section 121; the hearings panel not being limited to making recommendations within the scope of submissions under proposed section 139; the weight the hearings panel must give to the Auckland Plan for its recommendations under proposed section 140; what rules in the Auckland combined plan will have immediate legal effect under proposed section 147, and the related question of what weight the plan is to have on and from notification; and the members of the hearings panel under proposed section 155. Those are what Local Government New Zealand in its submission highlighted as key factors pertaining to Part 2. I ask the Minister whether she would be prepared to respond as to whether any of those recommendations were considered in her papers to Cabinet and whether any of those recommendations have been implemented as part of the amendments to the Resource Management Act.

With the proposed section 121, “Restrictions on amendments or variations to Auckland combined plan”—

The CHAIRPERSON (Lindsay Tisch): That is in Part 1. Clause 121 is in Part 1.

Oh, sorry. Yes. I suppose what I am referring to is that although the 3-year notification that has been given to Auckland is, I understand, accepted by the Auckland Council, the moratorium removes the tool, which means “that Auckland Council is unable to address the material information or a change in circumstances that arise after the plan is notified.”

Let me go to proposed section 139, then, given that that is in Part 2. The submission of Local Government New Zealand says: “These sections provide that the hearings panel is not limited to making recommendations within the scope of submissions and that Auckland Council may accept such recommendations. This is a significant departure from the existing law—clause 10(1) of Schedule 1 requires that a consent authority give a decision on the provisions and matters raised in submissions. There is established case law on this specific provision.” That is a significant matter that Local Government New Zealand is recommending, and its recommendation is to delete proposed sections 139(2) and 143(3). Again, I would ask whether the Minister considered any of the recommendations made by Local Government New Zealand in the papers.

My colleague Eugenie Sage has a Supplementary Order Paper about the make-up of the hearings panel. I think the proposal in the bill is a significant departure. If the Government refuses to accept the recommendation made by Local Government New Zealand, which is that Ministers and the Auckland Council jointly establish the hearings panel, that in itself sends a message that this Government, despite what it might say about partnership, continues to refuse to recognise that local councils—Auckland Council in this case—have a significant role to play and that they have a right to be able to be part of this decision making.

So what we are saying is that the Government and Auckland Council should partner in appointing the hearings panel. I have often heard this Government talk about partnering with local government, but, from what I have heard the Minister say tonight—if she is saying that none of the recommendations made by Local Government New Zealand has been adopted, and that none of the recommendations by Local Government New Zealand has been considered or included in any of the papers that she has tabled to Cabinet, then that sends a very powerful message indeed that the Government is only talking about partnership but in reality the theme of this is that it is going to gut local government. It aims to not recognise at all that local government is a viable partner in the development in our communities.

Part 2 of the Resource Management Reform Bill, “Local Government (Auckland Transitional Provisions) Act 2010”, includes a number of provisions to fast track the Auckland Unitary Plan process, which we support in principle. Minister Amy Adams was correct in saying that it was the Auckland Council that came to the Government and requested that the Government consider a legislative amendment to enable the unitary plan to become operative in a shorter time.

I totally agree with what my Green colleague Denise Roche said and with what Mr Su’a William Sio just said, which was that we find it difficult to follow the logic in provisions that allow the Minister for the Environment and the Minister of Conservation, rather than the Auckland Council, to appoint the hearing commissioner and set their terms of reference. This is undemocratic and it is an insult to the mandate given to the elected city councillors.

I would like to focus on the submissions, because it is very important for us to reflect on the concerns of those submitters across the board. Overall, we have received 97 submissions relating to the Auckland combined plan. Of the 97 submissions, only 9.3 percent were in support and 14.4 percent were in support with amendments, but, overall, 66 percent were in opposition. The predominant concern held by submitters was whether the broad scope of the regulation-making power included the ability to override parts of the Resource Management Act, and a number of submitters had expressed that concern. The provision is outside good legislation principles and may be unconstitutional.

Submissions also raised concerns that the provision would generate uncertainty and could open the Government or Minister to lobbying to change the process for preparing the plan midway through the hearing. Several submitters made suggestions as to how to further narrow the scope of the regulation-making power, including, for instance, a recommendation from Vector to insert a new subsection restricting that power to addressing only unforeseen situations or issues that arise during the preparation of the first Auckland combined plan. So it is not about how the National Government introduces legislative changes or about how important or desirable those changes are; it is more about the submitters and how to help the National Government to remedy the situation everybody is in, courtesy of the unconstitutional practice.

I would like to bring to the attention of the Committee a legal opinion by Sir Geoffrey Palmer. The New Zealand Fish and Game Council made available a copy of the very well-researched legal opinion by Sir Geoffrey Palmer. Basically, he summarises that, firstly, “Many of the “process-oriented” proposals will deliver improvements to the current process under the RMA with limited impacts on environmental protection.” That is a very balanced view. Secondly, he advises that “The proposed changes to Part 2 will significantly and seriously undermine environmental protection under the RMA. These changes are largely unnecessary and will lead to greater uncertainty and cost in the application and interpretation of the RMA.”

More important, I think it is very important for everybody to remember that the Resource Management Act underpins all Kiwi values. The changes in the current bill destabilise our social perception of what it means to be a Kiwi and puts at risk an economy progressively built on the foundation of the $14 billion “100% Pure New Zealand” and “clean, green” brands. Thank you.

The question was put that the amendments set out on Supplementary Order Papers 285 and 324 in the name of the Hon Amy Adams to Part 2 be agreed to.