Resource Legislation Amendment Bill

Thank you, Mr Chair—excuse my tentative standing there; I shall aim to improve. I would be very happy to take a call on Part—

The CHAIRPERSON (Hon Trevor Mallard): The member can improve a lot.

Ha, ha! I remember the wise words of former Assistant Speaker Ross Robertson, who said: “Courtesy is contagious.”

The CHAIRPERSON (Hon Trevor Mallard): The member can live in hope.

Ha, ha! I am always hopeful, and, of course, I am hopeful about this bill and the capacity of this Committee to look at improvements to it in this Committee stage, as well. It is in that vein that I rise to speak about Part 2, which refers to a number of changes to the Reserves Act. Of course, we sort of had the main act yesterday in terms of the Resource Legislation Amendment Bill. A lot of the significant changes that have attracted a great deal of public attention were in the earlier part, but it is nonetheless important that we also give scrutiny to the subsequent parts.

I personally feel very strongly about this part. I have got a background in local government over the past 6 years, and one of the things that I have learnt in that time is the importance and the preciousness of our parks and our open spaces; the reserves, which make our cities and towns good places to live, to experience recreation, and to provide protection to important ecological areas and wildlife. The fact is that we often have those reserves because of the legislative protections that we have in the Reserves Act. I have just got the purpose here of the Reserves Act, which I think is useful to reflect upon when we are looking at these possible changes here. Section 3(a) of that Act describes the purpose as “providing for the preservation and management for the benefit and enjoyment of the public, areas of New Zealand possessing—(i) recreational use or potential, … (ii) wildlife; or (iii) indigenous flora or fauna; or (iv) environmental and landscape amenity … or (v) natural, scenic, historic, cultural, archaeological, biological, geological, scientific, educational, community, or other special features or value:”.

So we turn to the bill under consideration and what it actually does in this area. Effectively, what it does is give the option of considering and consulting upon Reserves Act exchanges alongside plan changes. That is, effectively, what we are talking about here, and this does deserve some scrutiny. There are a number of submissions that point to some of the potential issues that come to the fore when we bring those two things together. Essentially, the problem—and the issue and the reason why the Labour Party has a problem in this area—is that if we go back to that purpose of the Reserves Act that I talked about, and then we look at the underlying objectives of this bill, which are, effectively, to encourage and support development, those objectives do not necessarily line up well.

Under the Reserves Act that we have, and the body of jurisprudence that has built up under it, there is always a fundamental and strong protection and interest in the reserve itself, always making Reserves Act decisions, especially in relation to exchanges under the Reserves Act, with the benefit of the reserve at the very centre. So the question is that if under this amendment bill—and we are talking here about the changes in new section 14A of the Reserves Act, inserted by clause 163—we potentially confuse and dilute the two purposes there, because if you are running the two processes together, that is, questions about whether it is appropriate to exchange reserve land and plan changes, which are almost inevitably about developing upon the subsequent land that has come about as a result of the exchange, how do you preserve the primacy of the interests of the reserve when you are running those two processes together?

If you look at the current process, we first go through a Reserves Act exchange process, and that gives us the opportunity to say: “Is this exchange of reserve land appropriate? Is it in the interests of the reserve land and the community that it serves?”. Now, the answer may very well be yes, it is, and in that case you can potentially then move onto the plan change process and look at development on that land. But I can only think that putting those two processes together puts additional pressure on the decision makers to think about the potential development, when, actually, what we should be focusing on in the first place is the land that we are considering under the Reserves Act.

So I have got real concerns here, and these concerns are reflected in some of the commentary around the bill and in some of the submissions. I refer—

Before I go to Mr O’Rourke, I am going to remind the Committee that we are talking to Part 2, and we are talking to what is actually in Part 2 now, not what might have been in it earlier. We are talking to Part 2 as amended, and any amendments to it, but there are not any yet. It is a very narrow area and does not actually even include the section that the member is referring to, which was changed at the select committee.

I raise a point of order, Mr Chairperson. Could I just clarify what you have just said? I understand that what we have before us, in the report from the Local Government and Environment Committee, relating to Part 2, includes a new section 15AA in clause 164.

The CHAIRPERSON (Hon Trevor Mallard): Yes, we have talked about that—that is fine.

OK; that is what I want to speak to. I think it is important that we do address that in this debate, because if the other provisions of this bill are bad enough, and New Zealand First says they could not be much worse, then in fact clause 164, which would insert new section 15AA, is, in our opinion, if possible, worse still. We think it attacks the integrity of the Reserves Act and creates a process by which private interests can prevail over public interests in terms of reserve land. It puts in place a process that makes that not just possible but a process that makes it almost inevitable, subject to certain conditions, which we think are too easily met.

The reason I say that is this: if you look at the section itself, the new section 15AA, you will see, as the previous speaker, Michael Wood, said, that it is tied to a process either for a resource consent or for a change to a district or regional plan. Therefore, this idea of being able to exchange land gets tied up with that process, and that process has to go forward. That is why I say it is almost inevitable, subject to some conditions, and that is what I want to question the Minister in the chair, Nick Smith, about, really.

When you look at the net-benefit provision in new subsection (5)(b) you struggle to understand, if you are reading it fairly, what that really would mean in terms of limitation. That is really the only effective limitation to this happening. There has to be a net benefit. The net benefit, which is difficult in itself to understand—how on earth can you quantify what is a benefit over one reserve in respect of what could be another reserve for an exchange land? How is it possible to actually quantify that, in terms of what would be a net benefit? In other words, you get more out of the new piece of land than you would out of the reserve that is going to be extinguished.

To make that worse, if you look at the word “community”, it has to be a net benefit “for the community that uses, benefits from, or enjoys the reserve.” What is the community, for these purposes? Does it mean the area immediately around the reserve? Does it mean the whole locality? Does it mean the entire city or town? Does it mean the region? What does it mean?

What I am pointing out to the Minister is that this is a very loosely worded subsection. This is the only saviour that the people who wish to keep such a reserve could point to, and yet they are going to have a hard job because of how loosely this section is drafted. It refers to community, it refers to net benefit, and so on. It is very difficult to establish. So that is why I say that once this process gets going, it is almost inevitable that we will lose reserves all over the country, where in fact there actually is not going to be any genuine benefit. The real thrust of this is typical National Government attitudes, that these public interests are second-class to the private interests that will be driving this.

That is what this whole provision is really all about. That is why New Zealand First will never vote for a provision such as this. It is the kind of thing that the Government is already putting forward, like the Point England development for example. The same sort of thing would happen under this provision as is happening there. This is a poor piece of legislation. It is not going to assist greatly in solving the housing crisis, but it will compromise the Reserves Act and the ability of communities and people to preserve their recreation reserves in the places that they are now. That is why this is so objectionable. It makes it so difficult for communities to resist this, because of this awful, loose, and shoddy piece of legislation, which should certainly not be allowed to pass.

Before I call any member, I just want to place on the record my apology to Michael Wood. I misread the section and did not see the consequential amendment to which he was referring, and I inappropriately criticised him. I withdraw and apologise.

This bill and part are quite specific around the Reserves Act. They provide for less bureaucracy. That is what this reform is about. I put it to the members from Labour and New Zealand First: how can you have a separate conversation, one conversation, about the changes to a reserve, which are permitted under the law right now, and have a separate process somewhere else for the resource consent and the planning changes that would enable better utilisation of our reserves and amenities?

I acknowledge the member who spoke earlier, who is vigorously opposed to the 1,500 homes development at Three Kings. It is a development that would result in more homes—

The CHAIRPERSON (Hon Trevor Mallard): Order! The member will resume his seat. I probably over-cautioned the member previously, as to sticking to the clauses in the bill. I think it is important, if the member is going to make that sort of a comment, that he very narrowly relates it to that, because otherwise what he does is he opens it up to all other members to take general cases, which might not be as closely related. It makes it very hard to chair.

I am happy to take that guidance, although a practical example is a good way for us to work through the Government’s objectives around these changes. In an example like Three Kings—but we could use many others—you have one set of process and submissions on the Reserves Act changes, and a separate set of decisions and process around the planning changes and in respect of the resource consent. All this provision does is say that if you are going to do those things, let us have one process. Why is it that members opposite are so into bureaucracy and multiple processes, rather than actually having good integrated systems?

The last point I really want to draw attention to is in respect of the very important subsection (5) of new section 15AA, inserted by clause 164, which is the administering body, the council—the elected council—in the area can only grant the application if it considers that the exchange would result in a net benefit for recreational opportunities for the community.

💬 Denis O’Rourke: Meaning what? How is that quantified?

Well, look, I just listened to the interjections from the member for New Zealand First, who continuously lectures us on trusting councils. The administering bodies are councils. These are elected bodies of people’s communities and they should be able to make good, smart decisions about the utilisation of those reserves, the way they interact with the plans, and the way in which they interact with resource consents. I simply say that the debate on this part reinforces that we are a party about less bureaucracy, about being flexible and nimble, so that we can address issues like housing. Typically, Labour and New Zealand First members constantly complain about not enough houses being built, about not enabling our communities to redevelop, but then block every practical measure that would get more homes built more quickly.

Tēnā koe, Mr Chair. This is another Nick Smith special. It is all about snaffling public land, public reserves, for more housing. When we have got intensive urban development, residential development, in our cities and towns, and particularly in Auckland, those areas of green space become absolutely critical for providing respite, for getting back to nature, for allowing people to relax, for providing oases of green in the city to help—

💬 Hon Maggie Barry: That’s what gardens are for.

—reduce heat pollution in summer, for providing trees—and I hear the Minister of Conservation attacking the protection of trees. It was this Government, of course, that changed the Resource Management Act (RMA) to allow private property owners to cut down a lot more trees—that stripped out the urban tree protection provisions in the RMA and substantially weakened it here.

The Green Party believes in good urban parks and reserves to provide a network of places where people can enjoy nature and where nature can thrive, because accessible and pleasant public reserves contribute to people’s well-being and sense of amenity. These places have got to be people friendly and they have got to protect natural values, but what this part of the bill is doing, in conjunction with Part 1, which made residential development and subdivision and unplanned subdivision much easier, is introducing a new process where, instead of going through the usual processes under the Reserves Act around land exchange, where the Minister of Conservation is the final decision maker, it bundles it up with the resource consent process.

💬 Hon Maggie Barry: Not true.

It does. The Minister obviously has not read the bill.

This part of the bill ensures, as Denis O’Rourke has pointed out, that the applicant only has to claim that there is a net benefit for recreation, and that could be putting in a new walking track or a new cycle track, and the applicant for development in the reserve—for using the reserve for housing, as the Minister wants to happen in the Point England Reserve—is able to say there is a net benefit to the community because a few more people will be able to walk there.

What this part of the bill fails to recognise is that once an area of public reserve has been sacrificed for housing and building development, the opportunities for future generations to use that reserve are gone. The opportunity for green space is gone for present generations. It is much less accessible. So this is sacrificing intrinsic values and opportunities for future generations to determine how public land should be used, just so we can have short-term housing development.

We should be able to plan our housing development in our cities and towns so that it is more intense, so that it is situated around public transport corridors with good planning, but this bill, in toto, is not—

The CHAIRPERSON (Hon Trevor Mallard): Order! [Interruption] Order! I am now going to—interjections were sort of going pretty heavily for a while, but when it starts crossing in front, from New Zealand First to National, of the member who is trying to speak, it makes it almost impossible for us to hear, and I am sure it does not assist the member. I mean, one set of interjections you can handle, but having two happening at once from different sides is quite hard.

Thank you, Mr Chair. So we want good, well-planned cities, but those cities do not occur—

💬 Hon Anne Tolley: With no houses—with no houses. They’d rather have cows grazing than houses.

—without the sacrifice of public lands and reserves in the short term for housing. Minister Tolley is claiming that the Point England Reserve does not have any value because it has cows grazing on it and has open space. If the Minister had listened to the submissions at the Local Government and Environment Committee, she would have heard that a lot of people value the land because of that—because it allows access to a farm experience in the city.

Anyway, getting back to this bill, it cuts right across using reserves for public recreation and amenity, and introduces a short-cut process for enabling them to be subdivided and thieved from the public to use for housing. So that is another one of the reasons that the Green Party is opposing the bill.

Can I start off by thanking you, Mr Chairperson, for your earlier comments, and also by thanking the Minister in the chair, Nick Smith, for his contribution and for proving the precise point that members on this side of the House have been trying to raise in this debate, which is that if we go down this track, then we will muddy the waters. We will not provide the protections that we currently have under the Reserves Act for our reserves. In the Minister’s comments, when he stood to take a call, that is exactly what he said. He criticised anyone who was standing up for the retention of the reserves in our towns and cities and said that was getting in the way of development.

The current protections we have under the Reserves Act when it comes to consideration of the exchange of reserves are very simple. It says that you consider the benefit to the reserve and the community that is served by that reserve. As soon as we start running that process together with plan changes that are almost inevitably centred around urban development—which, of course, is good, and we should be finding the space to do that—you muddy the waters, and the protection of those reserves will be watered down. But you do not have to believe me, believe another man called Michael Wood, who is one of New Zealand’s most eminent Resource Management Act lawyers from Simpson Grierson, who, in his commentary on this bill, is very, very clear.

He says: “The amendments are intended to facilitate improved urban redevelopment by enabling integrated consultation … Arguably the proposed new section 14B may have the effect of opening the door for more applications to exchange other land for existing recreation reserves,”. So he is making it very, very clear that the likely effect of these changes is for more and more of the parks and reserves in our towns and cities to be eyed up for development. And that is where this side of the Chamber has a real concern.

There are also some questions I would like to ask the Minister around this, and I guess the first thing is, really, to ask him about what the real driver for this is. If he is putting forward the argument that this is about developing more houses, does he really believe that these changes are likely to result in more development on our parks and reserves? Otherwise, what are we talking about here? What is the value of it? What analysis has been done to think about what changes we might see in the number of reserves exchange proposals coming forward under these proposals?

I want to pick up on a point, also, that was raised by Denis O’Rourke in his comments, and that is the net-benefit test. This is very, very important. It is at the core of the jurisprudence and the wording in the current Act and the bill when we consider whether an exchange under the Reserves Act should go ahead. The wording we have got—and it pretty much does transfer straight over from the original Act through into the amendments—is that we have to consider the “net benefit for recreation opportunities”.

This has always struck me as a little bit strange, and I wonder why it was not picked up at the Local Government and Environment Committee and whether it should be looked at, because, under the Reserves Act, we do not just classify our reserves by their recreational benefit. We classify our reserves as historic, recreational, scenic, or having natural benefits. But the wording in terms of the net-benefit test only seems to recognise the recreational benefits. I am not suggesting that that is a pernicious change put forward by the Minister or the Government, because that wording does just transfer over from the previous Act, but, none the less, it does seem to me to be a significant oversight that should be looked at. A whole range of the reserves that we have do not just have recreation benefits. If you are in Auckland, you look at the Hunua ranges or the Waitakere Ranges. Actually, the primary benefit of those reserves relates to their scenic and their ecological and sometimes historic values as well. So that is something that I think should be considered.

One of the other aspects—and the Minister may like to address this really—going to the core objection that has been raised on this side of the Chamber is the question of, if we are running these two processes together, how it is that we have some assurance that the people who will be hearing both the reserve exchange proposal and the plan change proposal will be able to separate out the different imperatives under both of those processes.

Firstly, let us remember that imperative under the Reserves Act to provide for the preservation and management for the benefit and enjoyment of the public of the reserve, and, secondly, the imperatives that will flow through from the amended Resource Management Act, which, essentially, are about supporting increased development. How is it, and what level of assurance do we have, that we can actually balance those two, and what work has the Minister and his officials done to ensure that we do achieve that balance if we are going to run these two processes together?

I am happy to answer a few of those questions very quickly. The member Michael Wood raises the concern that the test for any change in reserve relates to its recreational purpose. The member asks: “Well, what about scenic reserves? What about ecological reserves?”. The member misses that this provision covers only recreational reserves. The ecological reserves, the scientific reserves, and the nature reserves—all of those reserves—are unaffected by this provision; it is only recreational reserves. So it is entirely appropriate that the legal test is whether the recreation is enhanced or not.

The second point the member raises is whether this is just about the increasing development of housing on reserves. Not at all. It is about enhancing the amenity of our reserves. The member seems to be stuck in the mode of thinking that just because a set of reserves was provided for a community 100 years ago, that configuration of the reserves is going to provide the maximum amount of amenity today. I could take that member to hundreds of recreational reserves around New Zealand that have negligible use that could be configured far more sensibly to enhance their community. This provision will allow that to occur in a place like Three Kings, where actually the local sports club is very strongly supportive of the changes because the recreational amenity will be improved.

The third test I give to members opposite, who regularly lecture our Government on trusting local government, is to ask why it is that the administering body that is referred to in this part rests with the council. Fundamentally, it comes down to what occurs when councils come to make decisions about changes in reserves, and, when they have to meet that test, whether there will be a net improvement in amenity. I fundamentally trust that councils will make good calls that will see more vibrant communities, better recreational facilities, and also, where it makes sense, opportunities for more intensive development, because that is a critical part of the solution we have in providing the vibrancy and the housing for cities like Auckland.

I want to speak further about Part 2 and, in particular, clauses 162 to 165—

The CHAIRPERSON (Hon Trevor Mallard): I hope so, seeing they are the only clauses in it.

—the question of providing joint resource consent in recreation reserve exchange processes. I want to really reinforce the concerns that have been raised by my colleagues about the proposals and, in fact, the reservations that were expressed by submitters at the select committee on this. It did occur to me, listening to the debate and listening to the Minister, that even this provision is better than some of the behaviour that we have seen recently from this Government, because by providing an optional alternate process for consideration of, basically, changing the status of parks under the Reserves Act in the Resource Management Act (RMA), at least it provides some due process. I want to compare that and contrast it with the legislation that this Minister has brought to the House. I am talking about the Point England Development Enabling Bill, which, essentially, confiscates public parkland by legislative fiat. It cuts across the Reserves Act and the RMA to take away—

💬 Hon Dr Nick Smith: I raise a point of order, Mr Chairperson. I am looking forward to the debate on the Point England bill and welcome it, but today we are debating the Resource Legislation Amendment Bill, Part 2. That has no relevance to the separate Point England bill. [Interruption]

Order! No, I want to rule on this. Anticipating a debate is something that has quite a lot of Speakers’ rulings around it. My understanding is that the Point England bill is not so close to being heard by the House that a debate on it is ruled out because it is anticipated. The point that I am going to make to Mr Twyford is that passing reference would be OK, but he has now, I think, got beyond that. If there is anything left to be said that is new on this part, he should get to it. [Interruption] I call Dr—sorry, the Hon David Parker.

If only. The sort of doctor that makes you sick!

💬 Hon Maggie Barry: You’re right there.

Oh, what a lovely contribution from the old rough red on the other side! I hope we capture that.

The CHAIRPERSON (Hon Trevor Mallard): Order! You might just want to withdraw that.

I withdraw that, Mr Chairperson. I want to raise an actual example that was given to me by someone concerned about these Reserves Act changes. It builds on the points that have been made by my colleague and also by Denis O’Rourke and Eugenie Sage. It relates to the loss of open space. Some of these recreational reserves are open space. Fewer of them will be in the future. That is the effect of this provision because on more occasions than occur now, there will be a joint application under the Resource Management Act (RMA) and the Reserves Act to change what happens on those recreational reserves from being open space to having some commercial character.

The example that was given to me is in respect of the very limited open spaces that we have on the North Shore in Auckland—very, very short of open space in that area. There is pressure in respect of some of those open spaces to build boating clubs that have a commercial aspect to them: they will have a liquor licence sometimes, they might have a restaurant, and there might be some exchange involved somewhere else.

💬 Denis O’Rourke: Car-parks.

Yes, car-parks. Thank you, Mr O’Rourke. There will be a change that will be advocated by those people who are in favour of it, who will be alleging that there is a net benefit from the recreational opportunities that occur as a consequence of that. I think that is the contention that has been made by this person to me, who is an experienced lawyer with experience relating to the Reserves Act, saying that in his opinion that is what will be the result of this legislation.

Dealing with the Minister’s point about complexity and not trusting councils, actually, I do trust councils so this is not a distrust of council thing. But I want to deal with your point about bureaucracy. If members of the community who are opposed to the changing nature of the recreational opportunities on their local reserve have to deal with the RMA aspects of the car-parks, the liquor licensing, and the building, you can bet that the people who are pursuing that are going to be lawyered up themselves to deal with the complexity of what they are proposing.

Already this joint process is more complex than the two separate processes used to be. The Minister shakes his head but, logically, that is true. I am not saying that the RMA process is more complex than the existing RMA process; that is not what I am saying. I am saying that the addition of that to the Reserves Act process in the single process makes that single process more complex than the earlier separate Reserves Act process was for members of the public. So members of the public who might have been interested in keeping this as an open reserve without buildings on it—they wanted it as open space, a place to relax, an oasis of green, as Eugenie Sage said—will be required to deal with the Resource Management Act process at the same time. Overall, it will be a more complex process and it is likely that instead of a group of interested individuals appearing before councillors, instead we are going to have this more complex process in which some of the parties that are proposing this change, which is almost quasi-commercial sometimes, are going to have lawyers on their side and members of the public will feel more threatened, if you like, and less able to participate unless they have the resources to play that same game.

For those reasons, I support the comments from my colleague Denis O’Rourke and Eugenie Sage that, contrary to what the Minister is saying, you are actually going to have a more complex process and a more bureaucratic process compared with the existing process, which is limited to the Reserves Act considerations separately from the Resource Management Act processes for what is being proposed.

I move, That the question be now put.

I think that if the member had been a call earlier, he might have got it, but that was completely relevant.

I want to respond to a couple of things in relation to what Minister Smith has said in his recent comments. The first one is that he says to us: “Trust the councils. Look at what is in the bill, especially in relation to the net-benefit clause, and trust them.” Well, I do not trust them. I will say that here and now, and I say that with the benefit of having been a city councillor for 15 years. I do not trust them to be able to properly administer a piece of legislation like this. There are two reasons for that. One is that I think they too often make mistakes—quite simply, that. They make mistakes far too often. I could give you a dozen examples if you want me to, but I am sure everybody in this room knows that they actually do make mistakes.

💬 Chris Bishop: No, they don’t.

They do, in fact. The Government does, as well, and I could talk about Redcliffs School and how the Government is going to take a park, but I am not going to, Mr Chairman.

The CHAIRPERSON (Hon Trevor Mallard): I am pleased.

I said I could, but the point I am making is this: you cannot trust councils to always do the right thing, because they simply do not. And that is very important, because the purpose of a Reserves Act is to prevent councils and others from making those mistakes. The Reserves Act is a long-term piece of legislation that is there as the bottom line, to prevent all of that from happening, yet this Government is willing to compromise it. That is point No. 1.

Another point is this, concerning the net-benefit clause. The Minister tried to get us to believe that it is OK if you take some land for housing, as long as you actually exchange it for a reserve somewhere else and there is some kind of net benefit. I have already talked about the difficulty of defining that, but what I want to talk about next is this, and that is the strategic distribution of reserves. If you think about the long-term effect of this provision, what it could mean is that open space reserves get pushed further and further out of urban areas, towards the urban fringe. So you have got a reserve inside an urban area. Somebody says: “Let’s take that for housing. We’ll get a lot of housing out of that. We’ll create another reserve, but it will be a lot further away”—almost certainly a lot further away—“towards the urban fringe, because that will be cheaper and easier land to acquire.” They will concoct some story about net benefit that will persuade a council, and there you go.

So the net effect of this provision, I say to the Minister—and I want his specific response to this—will be that urban green space will be constantly pushed further and further out of urban areas, towards the urban fringe. So what you are going to get, in effect, is a doughnut effect. You will get this urban area in the centre, with virtually no reserves in it, and the exchanged urban reserves will all be dotted around the urban fringe. In strategic terms that is an extremely serious adverse effect of this provision. The Minister just shook his head, so I am going to wait with interest to hear why he does not think that will happen. It will not be enough just to give an opinion, because it is perfectly clear to me, and, I am sure, to others that what I have said is almost inevitably going to be the effect of this. It compromises the Reserves Act in yet another way in that respect. I am waiting to hear the response.

I move, That the question be now put.