Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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KIM BAUER[*]
This article considers whether socially equitable planning is a possibility, or whether it in fact remains simply an aspiration, in the present ‘post neo-liberal’ political climate. It considers recent reforms to the New Zealand (NZ) Resource Management Act 1991 (RMA), and in doing so, examines the seemingly opposing directives embodied in this statute: the advancement of a market-based neo-liberal planning paradigm; and the promotion of a socially equitable planning system and environmental values.
The report questions whether these inherently contrasting concepts can co-exist under a single framework, and suggests that, whilst this co-existence is evident in many aspects of the NZ planning legislature, the relationship is not always a comfortable one. It is also suggested that recent reforms to the RMA are moving in a direction that is neo-liberalist in character but is distinguished by increased state intervention, which favours improved efficiency in the planning approval process and in the preparation of national plans.
A comprehensive understanding of the ideologies embodied in the RMA is engendered from an examination of the political, social and ideological forces that influenced its drafting. Following the election of the fourth Labour government in 1984, NZ moved from a ‘welfare-corporatist state’[1] to what could be characterised as a ‘neo-liberal, post-welfare society’.[2] The neo-liberal new right movement, together with significant business interests,[3] criticised what they perceived to be overly prescriptive legislation in all sectors of NZ governance, including planning. In particular, they criticized the former Town and Country Planning Act 1977 (NZ) (TCPA) – a ‘command and control’ or ‘activity based’ planning legislation which was considered particularly prescriptive[4] – and called for a restructuring in favour of an economically efficient,[5] market-based resource management system.[6]
In response to this dissatisfaction, the Labour government established a resource management law reform process in 1987, beginning with a review of TCPA.[7] The RMA is a direct result of this reform process and is currently the key legislation controlling land use, development, subdivision, and use of natural resources in NZ.[8]
When it came into force in October 1991, the RMA repealed over 50 statutes, including the former TCPA. The intent of the RMA was to move away from prescriptive regulation of activities (through zoning) towards a more flexible, effects-based market allocation mechanism. Simon Upton, Minister for the Environment at the time of the RMA’s enactment, described the intention behind the new legislation:
the government has moved to underscore the shift in focus from planning for activities to regulating their effects … We run a much more liberal market economy these days. Economic and social outcomes are in the hands of citizens to a much greater extent than they previously have been. The governments focus is now on externalities – the effects of those activities on the environment.[9]
This philosophy is articulated in section 5 of the RMA which describes the Act’s purpose. It requires consideration of the effects of activities, rather than the direction or control of activities themselves. Further discussion in relation to this aspect is provided in Part III below.
In accordance with the ideology of NZ’s new right movement, the RMA advocates regulation on a ‘light touch’ basis.[10] At the same time, the RMA exhibits influences from other parties, including environmental organisations; this is evident in its incorporation of an expanded environmental scope (the RMA requires developers to seek formal planning consent for the use of natural resources such as land, air and water)[11] and increased public participation.[12] A more socially equitable planning system is advocated by the RMA, which introduces a more inclusive consultation process; under the RMA any group or individual can make a submission in relation to a proposed development.
It could be argued that the attempt to reconcile seemingly contradictory ideologies in a single legislative framework was not entirely successful. Ideological tensions within the RMA have arisen because the legislation was influenced by two lobby groups with different, even opposing, political agendas.[13] Grundy and Gleeson suggest that the contrasting ideologies of the RMA can be understood as an uneasy compromise between two divergent and contradictory socio-political forces: the neo-liberal new right and the environmental movement.[14] According to Memon, environmental equity and market liberalism as competing ethics for environmental planning are not mutually exclusive, and in his opinion, the RMA ‘reflects both sets of ethical norms’.[15]
The conflicting ideologies embodied in the RMA reveal themselves in a number of aspects of the legislation which will be discussed below.
The purpose of the RMA (defined in section 5) is ‘to promote the sustainable management of natural and physical resources
’.[16] ‘Sustainable management’ is defined as ‘managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety’.[17]
Although derived from the principle of sustainable development advocated in the World Commission on Environment and Development’s (WCED) Brundtland Report,[18] the RMA’s purpose is somewhat more limited. The notion of social equity, a key concern of the Brundtland Report,[19] was avoided in the RMA’s definition of sustainable management. As stated by the Minister for Environment, the RMA was ‘not designed or intended to be a comprehensive socio-planning statute’; its only objective was ‘to promote the sustainable management of natural and physical resources’.[20] The Ministry for Environment indicated that it was dismissing the approach to sustainability advocated the Brundtland Report as it embraced ‘a very wide scope of matters including social inequities’ and that it was ‘inappropriate for legislation of this kind to include such goals’.[21]
The RMA also demonstrates a significant influence by the Treasury in determining its general objectives. Treasury argued that the purpose of the Act should be limited to providing a legal framework to enable the impacts of resource use to be controlled, thereby limiting it to an environmental effects management statute which would enable local authorities to prescribe minimum bio-physical standards.[22] Treasury did not favour incorporating the concepts of sustainability and intergenerational equity into the RMA and suggested that social objectives would be better achieved through separate social policy.[23]
Whilst the legislature’s intention may have been to restrict the scope of the legislation by setting a relatively narrow objective, the Environment Court holds a different view. The Court refers to section 5(2) of the RMA, which reveals that the legislation is not only concerned with bio-physical aspects of environmental planning but also addresses anthropocentric aspects. Section 5(2) reads:
In this Act, ‘sustainable management' means managing the use, development, and protection of natural and physical resources in a way … which enables people and communities to provide for their social, economic, and cultural wellbeing [emphasis added] and for their health and safety while –
(a) Sustaining the potential of natural and physical resources (excluding
minerals
) to meet the reasonably foreseeable needs of future generations [emphasis added]
[24]
Case law has established that the objective of sustainable management as stated in section 5 should be interpreted in a holistic manner.[25] This is particularly relevant as in NZ the Courts decide what the law is when determining disputes between parties. As Birdsong notes:
the power of de novo review elevates the Environment Court’s role above that of a mere adjudicator and vests it with the authority to set and implement environmental policy in New Zealand. The power of de novo review places the Court in the position to perform the fundamental tasks of environmental management.[26]
The Environment Court advocates a more expansive interpretation of the RMA’s purpose. In deciding whether a plan, policy, or a development proposal will promote the sustainable management of natural and physical resources, the Court weighs up often conflicting bio-physical, socio-cultural and economic considerations, and assesses the degree to which such considerations impact on the health of the community. The Court approaches this from both an inter-generational and intra-generational perspective.[27]
Examples of the Environment Court’s broad interpretation can be found in a number of key decisions.[28] Foxley Engineering Ltd v Wellington City Council[29] for example, was an appeal against the granting of a resource consent by the Wellington Council to establish a service station and car park on a corner allotment in Wellington. This case raised some important issues about inner city amenity and the heritage value of existing buildings.
Referring to section 5, the Environment Court said:
The provisions of sections 5(2)(a), (b) and (c) may be considered cumulative safeguards which exist in order to ensure that land resource is managed in such a way that … enables people of the community to provide for the various aspects of their social wellbeing and for their health and safety. They are safeguards which must be met before the Act’s purpose is fulfilled. The promotion of sustainable management has to be determined therefore in the context of these qualifications which may be accorded the same legal weight.[30]
The Minister for Environment has disagreed with some of the Court’s decisions and its tendency to interpret the purpose of the RMA in a more interventionist manner.[31] He has favoured an interpretation that simply requires local government to manage externalities arising from resource use.[32]
Whilst the RMA advocates more socially equitable environmental assessment by expanding the scope of consultation for resource allocations, it also embodies the ‘efficiency’ provisions advocated by the neo-liberal new right.[33] This is exemplified in the provisions which allow greater non-notification of consent applications (under section 94), and which undermine the RMA’s improved public participation.[34]
Section 94 allows developers to avoid the public notification of their consent applications where a council is satisfied that the criteria prescribed in section 94 are met. These criteria require that:
(1) the adverse effect must be minor;
(2) written approval has been obtained from all those whom the council thinks will be adversely affected.
Section 94 allows developers to seek written approval from anyone ‘who may be adversely affected’ by their proposal. Potentially affected parties surrender certain key rights when they give written assent to a development proposal. In particular, such parties relinquish their right to object to the proposal.
The non-notification of resource consent is assumed to increase efficiency in the planning process. It also serves the economic interests of the developer by avoiding the potential for the wider community to learn about a resource proposal which may be controversial and likely to arouse opposition.
There is evidence that some councils and developers are using section 94 provisions to avoid public notification of a consent application where notification should arguably have been undertaken[35] – a deeply concerning consequence of these provisions. The 1994 report of the central government’s Ombudsman noted that some local authorities were interpreting the section 94 provisions too liberally and allowing non-notification in some instances without the written consent of potentially affected parties.[36] This concern was reiterated by the Parliamentary Commissioner for the Environment.[37]
The section 94 provisions also place planners in the potentially difficult position of having to decide whether a proposal passes the two non-notification tests. Planners must determine the potential impact area, a complicated and often subjective task. The planner must then identify every person who may be ‘adversely affected by the activity’[38] in the absence of any clear definition of how to determine affected parties.
The planners must then decide whether the impacts are minor in terms of environmental, social, cultural and bio-physical effects. It is extremely difficult for planners to make such highly complex and often politicised decisions.[39]
Communities may challenge a non-notification decision. The Resource Management Amendment Act 2005 (NZ) (RMAA) now allows decisions on notification to be challenged in the Environment Court rather than the High Court. This means that there is greater potential for the Court to apply its broad (and anthropocentric) interpretation of the RMA’s purpose when making decisions on whether the non-notification of a consent has (or will) result in adverse impacts on affected parties, and whether the extent of the impact has been properly considered. However, this is dependent on the matter being brought to the Court. This is not always possible as some potentially affected parties will relinquish their right to object without a full understanding of what they are giving up.
There is growing evidence that developers are using financial remuneration to obtain the written approval of potentially affected neighbours. A 1994 study found proof of such ‘compensation markets’ in New Zealand.[40] The operation of such markets brought a senior Environment Court judge, Justice Treadwell, to remark that ‘resource consents can to a degree be bought’.[41]
Dormer notes that from the viewpoint of businesses, ‘the increased availability of non-notification procedures has been a distinct advantage’.[42] However, there is the potential for some extremely concerning negative social impacts. These have been identified by Grundy and Gleeson as:
1. knowledgeable property owners are able to bargain for a rate of compensation as adversely affected parties;
2. the possibility that uninformed neighbours may not be fully aware of the consequences of their sale of written approval, and the risk that developers may misinform potential objectors;
3. the making of payments to property owners, as opposed to the property occupiers who will suffer from the adverse environmental effects;
4. intergenerational inequity - compensation is a one-off payment which does not compensate for long term impacts;
5. the utilisation by developers of economically deprived areas and communities – which may be vulnerable to market compensation – for developing undesirable land uses.
The High Court[43] advocates a careful approach to implementing the provisions of section 94. Sheppard and Ors v North Shore City Council[44] concerned a proposal for a business park development on the edge of a lagoon that was granted consent on a non-notified basis. Priestley J noted that decision makers are required to try to balance the interests of developers against the interests of neighbours and other interested groups, and that Courts should be slow to allow the use of section 94 to limit public participation.[45]
Similarly, in Vining v Nelson City Council[46] the court reiterated the fact that the RMA is based on a public participation premise and, when assessing whether or not to notify a proposal, where there is any doubt then one should notify.
Central government’s principal role is to oversee and monitor the RMA and influence resource management through the following mechanisms: statement of national policy to guide local government activities; call-in procedures for proposals of national significance; and the setting of national environment standards for regulation of noise, contaminants, water, soil and air quality.
To date, central government has been reluctant to exercise its powers. There has been only one statement of national policy – the mandatory NZ Coastal Policy statement, released by the Minister of Conservation – and until the implementation of recent reforms, no national standards had been prepared.[47] It can be assumed that the lack of national planning policies is due to the fairly complicated, politicised, and time-consuming process of getting such documents implemented. Recent reforms to the RMA have given the Minister for Environment and central government more power and options to carry out its role of preparing national planning guidelines, and has allowed for what could be termed the ‘fast tracking’ of policy development.
The RMAA allows more flexibility in the way a national policy statement is prepared by providing two options: the board of inquiry process (previously the only avenue for implementing a national policy) and a new process of statutory consultation through submissions on a draft national policy statement.[48]
These amendments are designed to enable national policy statements to be prepared and implemented in the most efficient and cost effective manner. Whilst the new process requires that ‘adequate time and opportunity to make a
on the statement’ be provided,[49] it is not as prescriptive as the board of inquiry process, which specifies procedures for public notification and matters that must be taken into account in considering public submissions and the draft national policy statement.
These recent reforms have not been in place long enough for their effects, in terms of a socially equitable planning system, to be properly considered. However, it is evident that the intent behind the recent reforms is to ‘fast track’ environmental policy development – an indication that the ideology of the new right is still an influence in NZ policy development. There is a risk that – as the controls for public consultation are not as prescriptive – public participation in the development of such policy may not be as broad or inclusive as is necessary to ensure social equity.
Before the amendments, the Minister for the Environment could call in any application for a resource consent that the Minister considered to be a matter of national significance. When an application was called in, the Act required the Minister to appoint a board of inquiry, to hold a hearing and to make recommendations to the Minister. After receiving the board’s recommendation, the Minister, rather than the local authority, was to decide the application.
Call-in procedures have seldom been used,[50] probably due to the complicated process of carrying out a call-in procedure. The reforms to the RMA provide a range of more flexible tools to enable central government to intervene when resource consent applications or council plans present issues of national significance. Under the new section 141(1), anyone can now request the Minister to intervene in a matter of national significance and a number of more flexible avenues exist, in addition to the traditional ‘call-in’ option, through which the Minister can intervene.
The Minister also has an additional option (other then the board of inquiry avenue): she can refer the matter to the Environment Court.[51] Decisions can only be appealed to the High Court on points of law; the absence of any other means of appeal escalates the risk that social equity and environmental concerns may be side-lined in the push to ‘fast track’ nationally significant projects. However, it is hoped that the Court’s inclusive interpretation of the Act will be applied and that there will be greater potential for social, economic and environmental sustainability to be given equal standing when considering such matters.
Under the influence of the new right movement, the RMA was originally conceived as a planning statute focused primarily on controlling externalities arising from economic activities. However, it is evident that the implementation of the RMA has engendered an interpretation that also focuses on social and environmental impacts.
Whilst the recent reforms to the RMA exhibit characteristics of the new right ideology (evident in the introduction of ‘fast-track’ mechanisms for policy development), there is also evidence of increased central government control, and the potential for the Court to influence an anthropocentric interpretation of the RMA’s intention when deciding on non-notification matters and nationally significant projects.
If the new mechanisms contained in the RMAA are fully utilised, there is significant potential for planning to move in a direction that is more socially equitable than had been originally envisaged when the legislation was drafted. However, this is largely dependent on the Environment Court upholding social equity and environmental sustainability as a primary concern when exercising its power. It is also dependent on the Court being given the opportunity to do so, particularly when the Minister exercises her ‘call-in’ rights. The increased power and selection of ‘fast track’ options available to the Minister and central government means there is also a risk that national planning decisions could become more politicised, and that public consultation may not be adequately inclusive.
It is hoped that the new reforms will result in resource consents and policy development that are environmentally ethical and socially equitable, although this remains to be seen. For the full benefits of the reforms to be realized, and to ensure that social and environmental concerns are maintained as key foci of the legislation, a regular review of the amended RMA needs to take place.
[*] Bachelor of Arts at the University of Cape Town, South Africa. Masters in Urban and Regional Planning at Sydney University. Currently working towards a Masters in International Environmental Law at Macquarie University, research work focusing on the recent inclusion of Part 3A into the NSW Environmental Planning and Assessment Act 1979.
[1] Johnston notes that the ‘corporatist-welfare state’ (which was predominant in the economic downturn of the 1920s and 30s) was characterised by the active intervention of the state in both economic and social policies including ‘promoting economic policies which would ensure full employment in the future’, the focus of which were market efficiency: R J Johnston, ‘The Rise and Decline of the Corporate-welfare State: A Comparative Analysis in Global Context ’ in P J Taylor (ed), Political Geography of the Twentieth Century: A Global Analysis (1993) 117, 126
[2] The ‘neo-liberal, post-welfare society’ was typical of the economic reform of the 1980s. In New Zealand in particular, this resulted in the significant withdrawal of the state’s intervention in social and economic policy: ibid, 151
[3] According to Grundy and Gleeson, business groups complained about problems arising from the bureaucratic hurdles encountered when seeking multiple consents and the inflexibility of planning schemes. They also criticised what they considered to be overgenerous public participation provisions, accusing some community groups of utilising these as delaying tactics: B J Gleeson and K J Grundy, ‘New Zealand’s Planning Revolution Five Years On: A Preliminary Assessment’ (1997) 40(3) Journal of Environmental Planning and Management 293, 296.
[4] See eg, A Memon, ‘Shaking off a colonial legacy? – Town and Country Planning in New Zealand’ (1991) 6 Planning Perspectives 19.
[5] Spiller points out that, ironically, the RMA has not met the expectations of the business sector which hoped for a more streamlined approvals process: Marcus Spiller, ‘New Zealand’s Resource Management Act: An Australian Perspective’ (2003) 40(2) Australian Planner 100, 101.
[6] R Proctor, ‘The Purpose and Style of District Planning: An Economist’s View’ (paper presented at District Planning Forum, Wellington, 1985).
[7] T Hearn, Review of the Town and Country Planning Act (1987).
[8] Rob Harris, ‘Development v Protection, an Introduction to RMA and Related Laws‘ in Rob Harris (ed), Handbook of Environmental Law (2001) 56, 57.
[9] New Zealand, Parliamentary Debates, Third Reading Debate on the Resource Management Bill, 4th July 1991, 3018-21 (Simon Upton).
[10] See eg, A McArthur and M Porter, ‘Economics and the Environment: The New Zealand Debate’ in P Ackroyd (ed), Environmental Resources and the Market Place (1991).
[11] Gleeson and Grundy, above n 3, 298.
[12] T Buhrs and R V Bartlett, Environmental Policy in New Zealand: The Politics of Clean and Green (1993) 122-4.
[13] See eg, B J Gleeson, ‘The Commodification of Resource Consents in New Zealand’ (1995) 51(5) New Zealand Geographer 42.
[14] K J Grundy and B J Gleeson, ‘Sustainable Management and the Market: the Politics of Planning Reform in New Zealand (1996) 13(3) Land Use Policy 197, 197.
[15] A Memon, ‘Reinstating the Purpose of Planning within New Zealand’s Resource Management Act’ (2002) 20(3) Urban Policy and Research 299, 302.
[16] Resource Management Act 1991 (NZ).
[17] Resource Management Act 1991 (NZ).
[18] World Commission on Environment and Development, Our Common Future (1990) defines sustainable development at 87 as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.
[19] See eg, S Beder, The Nature of Sustainable Development (1993) 145.
[20] T Fookes, Social and Economic Matters – Some Thoughts on How These Can Be Dealt with under the Resource Management Act (1992) 1.
[21] Ministry for Environment, Resource Management Information Sheet Number Six (1991).
[22] Memon, above n 15, 304.
[23] Memon, above n 15, 304.
[24] Resource Management Act 1991 (NZ).
[25] In North Shore City Council v Auckland Regional Council [1996] NZEnvC 23; (1997) NZRMA 59, Judge Sheppard concluded that decisionmakers under the RMA must exercise overall, broad judgment in considering the various factors included in the definition of sustainable development.
[26] Bret C Birdsong, ‘Adjudicating Sustainability: New Zealand’s Environment Court’ (2002) 29(1) Ecology Law Quarterly 1, 2, 34.
[27] Gleeson and Grundy, above n 3, 293.
[28] See eg, Foxley Engineering Ltd v Wellington City Council, Decision W12/94; Campbell v Southland District Council, Decision W114/94; Aquamarine Ltd v Southland Regional Council, Decision C126/97.
[29] Foxley Engineering Ltd v Wellington City Council, Decision W12/94.
[30] Foxley Engineering Ltd v Wellington City Council, Decision W12/94, 40.
[31] Grundy and Gleeson, above n 3.
[32] S Upton, ‘The Problem of Rural Subdivisions’ (speech delivered at the New Zealand Planning Institute Conference, Taupo, May 1995).
[33] P A Memon, Keeping New Zealand Green: Recent Environmental Reforms (1993).
[34] Gleeson, above n 13, 42.
[35] Gleeson, above n 13, 42.
[36] Office of the Ombudsman, Report of the Ombudsman/Te Kaitiaki Mana Tangata (1994).
[37] Parliamentary Commissioner for the Environment, ‘How well are Effects Assessed under the RMA?’ (1995) 14, 182.
[38] Resource Management Act 1991 (NZ).
[39] Gleeson and Grundy, above n 3, 293.
[40] Gleeson, above n 13, 42.
[41] Treadwell, ‘Address to Nelson Conference’ (Speech presented at Proceeding of New Zealand Planning Institute Conference, New Zealand, 1994).
[42] A Dormer, The Resource Management Act 1991: The Transition and Business (1994) 67.
[43] As discussed above, this function will now be taken over by the Environment Court.
[44] Sheppard and Ors v North Shore City Council (HC, Auckland, M1791-SW00, 1 May 2001, Priestley J).
[45] Ibid.
[46] Vining v Nelson City Council (HC, Nelson, CP 23/99, 16 November 2000, Gendall J).
[47] Gleeson and Grundy, above n 3, 293.
[48] Ministry for Environment, Resource Management Amendment Act 2005 – Improving Decision Making (2005).
[49] Resource Management Act 1991 (NZ) s 46(A).
[50] The only record that could be found of the use of the call-in procedure was in relation to the North Island power station approval. See eg, D Grinlinton, ‘The Taranaki Power Station – Atmospheric Discharges and the Resource Management Act’ (1995) 1(8) Resource Management Bulletin 1.
[51] The exception to this is when the matter relates solely to the coastal marine area. Section 140A states that, where a matter relates only to the coastal marine area the Minister of Conservation is the approval authority.
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