Posted on 17-1-2003
RMA
- About protection Not Profits
From Forest & Bird
The Government is intending to pass an amendment to the Resource
Management
Act that will severely reduce the quality of environmental decision-making,
says Forest and Bird.
The Resource Management Amendment Bill will reduce public participation
in
important environmental decisions. If the new limited notification
process
is introduced, it will mean that only those who are financially
affected,
including "nuisance-neighbours" and trade-competitors, will
be able to take
part in the decision-making process, while people representing
the public
interest will have no say. "Public participation is the cornerstone
of a
democratic society," says Kate Mitcalfe, Forest and Bird's environmental
lawyer. "Submitters provide alternative information to that
of the
applicant in the resource consent process. It is essential that
communities
have a say about what affects their environment, they often
have vital
knowledge that consultants and developers lack."
The business lobby is arguing that reducing public participation
will cut
costs to business. However, improvements to the implementation
of the RMA
by councils and an increase in central government leadership
would improve
RMA processes and environmental outcomes. Already the vast majority
of
resource consent applications are considered without any opportunity
for
public input. "On average, a staggering 95% of resource consent
applications are processed on a non-notified basis and decisions
are based
solely on information provided by the applicant. The failure
of councils to
notify resource consent applications means that significant
natural areas
are destroyed without any public input; for example, the clearfelling
100ha
of pristine native forest in the Catlins."
A recent OECD Report shows that the average compliance costs
for NZ
businesses is lower than that of businesses in any of the ten
other
countries surveyed and the cost to comply with the RMA is lower
than the
cost to comply with our tax or employment laws. The Business
community
wants the benefits of a clean, green image but do not want to
take the
steps needed to make it a reality. The Ministry for the Environment
estimates that our clean green image is worth billions of dollars
each year
to exporters and the tourism industry.
"The Government's proposal will undermine any opportunity for
the RMA to
work effectively, unless the public interest is taken into account.
It will
lead to ad hoc development at the cost of clean air, land and
water,
public health and enjoyment, and the significant revenue generated
as a
result of the quality of our environment."
Public participation ensures that all relevant information can
be made
available and properly balanced, creating fair and sustainable
decisions.
It is essential that the interests of the community and the
environment be
considered alongside those with financial interests.
BACKGROUND INFORMATION
The RMA replaced over 50 statutes that dealt with different
aspects of
environmental management so all the effects of a proposed activity
could be
considered together. The RMA is world-leading in this respect
and is
frequently used as a guide for other countries considering environmental
law reform.
Under the RMA, district and regional councils are responsible
for making
most environmental decisions. The purpose of the RMA is to promote
sustainable management by "avoiding, remedying or mitigating"
the adverse
effects of proposed activities on the environment. This does
not mean that
there should be no development or
that all natural areas should be protected. To the contrary,
this generally
means there should be a process, the resource consent process,
to consider
the effects of proposed developments on our environment and
our community.
On average, only 5% of resource consent applications are currently
publicly
notified, allowing any opportunity for public comment. In addition,
more
than 99% of all resource consent applications was granted last
year and
only 1% of applications were appealed. The level of notification
under the
RMA is less than half that which occurred under the Town and
Country
Planning Act 1977, the planning legislation that preceded it.
EXAMPLES OF NON-NOTIFIED APPLICATIONS
* A non-notified resource consent for a flockmud landfill at
Waipu, south
of Whangarei. Monitoring by Northland Regional Council has detected
toxic
waste in the landfill. Had the application been notified, local
residents
would have been able to voice their concerns, and the contamination
would
have been avoided.
* A non-notified coastal permit issued by the Wellington Regional
Council
to farm the alien invasive seaweed Undaria in Wellington harbour.
Yet,
considerable resources have been directed to trying to eradicate
Undaria
from other parts of the country such as Stewart Island and Bluff.
* Various burning permits in the Canterbury and Otago Regional
Council
areas, despite impacting on identified significant natural areas.
* Timberlands consent to log in Orikaka forest (Buller District
Council),
an outstanding area of native forest.
* Subdivision of a coastal block at Thompson's Point on Waiheke
Island,
which began illegally without a resource consent. Part of the
works was in
a wetland area where earthworks are not permitted under the
District Plan.
The earthworks are visible from public places and from the sea.
The
applicant then applied for retrospective non-notified resource,
which has
subsequently been approved by the council.
* Onetangi landfill, Waiheke Island - The applicant applied
for consent to
construct bunding and backfill with clean fill. The earthworks
were
adjacent to a public reserve and in the centre of Onetangi Village.
The
reserve is largely flat low-lying wetland.
* Non-notification of an application by Fletcher Challenge Energy
to carry
out seismic surveys (New Plymouth District Council). The surveys
had
significant adverse effects on the local community. Drilling
also
encroached into Maori burial grounds.
* Non-notification of new 42 dwelling subdivision development
in Chartwell,
Christchurch.
* Non-notification of multi-storey apartment development, Kelburn
Parade,
Wellington. Development had significant adverse and ongoing
effects on
neighbours. The recent Assignment programme covered this application.
* Non-notification of a consent to clear-fell 100 ha in the
Catlins granted
by Clutha District Council.
COSTS OF THE RMA
It is not uncommon to hear claims that the RMA creates 'unnecessary
costs,
delays, and uncertainties', but how much is environmental management
really
costing us? A recent OECD Report (Businesses' Views on Red Tape:
Administrative and Regulatory Burdens on Small and Medium-Sized
Enterprises
(2001) OECD) shows that New Zealand businesses require fewer
resource
consents under the RMA, than the number of permits required
under
environmental legislation in most of the ten other countries
surveyed. The
Report shows that it costs New Zealand businesses significantly
less to
comply with the RMA, than the cost to comply with our tax and
employment
legislation. It estimates that 42% of our businesses' compliance
costs come
from meeting the requirements of tax legislation, 32% from employment
legislation and only 25% from meeting environmental standards.
Further, the
overall compliance costs for New Zealand businesses are substantially
below
the average compliance costs for the OECD countries surveyed
in the Report.
The RMA, by its nature, is weighted in favour of developers
and against
community groups. Developers have better access to information,
funding,
scientific expertise, and legal representation, while community
groups are
usually under-resourced and unable to participate. Participating
at the
Environment Court level also exposes community groups to the
risk of having
costs awarded against them. After losing their case, legal costs
of nearly
$27,000 were awarded against the Save the Sounds - Stop the
Wash group,
which had sought to reduce the speed of the fast ferries to
address
environmental and safety issues (Marlborough District Council
v New Zealand.
Rail Limited 1 NZED 60). The Marlborough District Council has
since passed
bylaws to reduce ferry speed. Claims that "vexatious" submitters
hold up
development are used as an argument to reduce public participation.
However, few members of the community have the time or energy
to
participate in the RMA planning process - if they manage to
hear about and
understand a proposal, writing a submission can still be a daunting
prospect (let alone appearing before a council hearing committee).
The RMA
devolves responsibility for the environmental public interest
to
communities but there is little support for those that participate
to
ensure that councils properly consider the environment.
Complaints about the costs associated with the RMA are usually
uninformed
and without foundation. The RMA provides an opportunity to safeguard
our
environment for future generations - reducing public participation
may
reduce costs to the developer, but at what cost to the community
and the
environment?
COURTS SUPPORT PUBLIC PARTICIPATION
The courts have endorsed public participation in environmental
decision-making. The Environment Court in Minister of Conservation
v
Southland District Council (A039/01) held that "the process
of deciding
whether resource consents should be granted or refused is more
complete,
and leads to better decisions, when others have the opportunity
to make
submissions." The High Court in Murray v Whakatane District
Council (2
NZED 557) held that the broad right of public participation
in
environmental decision-making is "based upon a statutory judgment
that
decisions about resource management are best made if informed
by a
participative process in which matters of legitimate concern
under the Act
can be ventilated."
Hayley Meehan, Conservation Assistant Royal Forest and Bird
Protection
Society of NZ Inc. PO Box 631, Wellington
Contact: Kate Mitcalfe, Environmental Lawyer phone 04 385 7374
or Barry
Weeber, Senior Researcher phone 04 385 7374, 025 622 7369
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