Resource management legislative reform - Local Government ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Resource management legislative reform
Arrangements for preparing proposed plans and strategies
A ‘THINK PIECE’ - GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT
Prepared for: Clare Wooding
LGNZ
Submitted by: John Hutchings
HenleyHutchings
JULY 2021
COMMERCIAL IN CONFIDENCE
Page 1
23 JULY 2021 Resource management legislative reform Arrangements for preparing proposed plans and strategies A ‘THINK PIECE’ - GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT HenleyHutchings Level 4 276 Lambton Quay Wellington 6031 www.henleyhutchings.co.nz Page 2
Contents
Background ........................................................................................................................................................................... 4
Randerson Panel .......................................................................................................................................................... 4
Objective or resource management reform ................................................................................................................ 4
Government decisions ................................................................................................................................................. 4
Purpose of this think piece........................................................................................................................................... 4
Scope and challenge 5
Primary concern ........................................................................................................................................................... 5
Focus of this paper ....................................................................................................................................................... 5
Key findings of this paper............................................................................................................................................. 5
Structure of paper ........................................................................................................................................................ 6
Problem statement 6
Government’s proposed solution ......................................................................................................................................... 6
Legislative solution....................................................................................................................................................... 6
Regional Natural and Built Environments Plan (NBA Plan) - purpose.......................................................................... 7
Regional Spatial Strategy (RSS) - purpose .................................................................................................................... 7
Proposed governance arrangements and processes to prepare NBA Plans and RSSs ......................................................... 8
Natural and built Environments plans (NBA Plans) - process ...................................................................................... 8
NBA plans – panel / central government proposals ........................................................................................................... 9
Regional spatial strategy (RSS) - process ................................................................................................................... 10
Regional spatial strategies - panel / central government proposals ................................................................................ 11
Implications for local government ...................................................................................................................................... 12
Inappropriate limits to local decision making ............................................................................................................ 13
Too much power to the centre .................................................................................................................................. 14
Other uncertainties and challenges ........................................................................................................................... 14
Reform overload ........................................................................................................................................................ 16
Principles to guide the design of preferred resource management governance accountabilities, instruments, and
processes 16
Subsidiarity and accountability - principles ............................................................................................................... 16
Local authority staff ................................................................................................................................................... 18
Preferred NBA Plan and RSS solutions ................................................................................................................................ 19
NBA Plans – preferred solution .................................................................................................................................. 19
Preferred alternative for the preparation of NBA plans ................................................................................................... 20
Alternative NBA Plan development options .............................................................................................................. 21
Regional Spatial Strategies - preferred solution ........................................................................................................ 21
Other key matters of importance .............................................................................................................................. 24
Summary of preferred solutions ......................................................................................................................................... 25
Conclusion .......................................................................................................................................................................... 31
Page I 3Background
Randerson Panel
The review of the Resource Management Act (RMA) was carried out by a Panel chaired by Retired Court of
Appeal Judge Tony Randerson QC. The Panel’s report proposes replacing the RMA with three new pieces of
legislation. These are the:
Natural and Built Environments Act (NBA Act).
Strategic Planning Act (SP Act).
Managed Retreat and Climate Change Adaptation Act (CCA Act).
Objective or resource management reform
The aim of the review was to improve environmental outcomes, better enable urban and other resource use
to occur within more clearly defined environmental limits and improve resource management outcomes for
Māori. In the words of Minister for the Environment Hon David Parker1:
The whole idea is to make the RMA simpler and easier to deal with – less complex, less difficult to
administer and less costly.
Enable more consolidation of planning rules.
Government decisions
A December 2020 Cabinet paper2 confirmed Government’s intent to repeal the RMA and replace it with the
three proposed new Acts. An exposure draft of the NBA Bill, and related consultation material, was released
on 29 June 2021. Parallel work is being undertaken on the content of the SP Act. Work on the CCA Act has
been deferred for 12 months.
Submissions on the exposure draft of a skeleton of the NBA Bill will be considered by the Local Government
and Environment Select Committee in August 2021. Separate to the Select Committee inquiry, MfE are
considering questions about the design of governance arrangements across the system, although some
consideration may also be given to this by the Select Committee.
Purpose of this think piece
LGNZ has an opportunity to influence that process. It also wants to assist individual local authorities to
contribute to the Select Committee inquiry. The purpose of this ‘think piece’ paper is to provide information
and ideas to support these actions.
1 These comments were at the heart of the press release issued by the Minister.
2 This was proactively released in February 2021.
Page I 4Scope and challenge
Primary concern
The changes to resource management legislation, if implemented in their recommended form, will have
major implications for the resource management roles and responsibilities of local government. Among
other things, they will centralise more resource management decision making power in government and in
regional committees. In so doing, they may disempower territorial local authority elected councillor ‘place-
based’ decision making. They will thereby make it more difficult for local government to achieve the purpose
for which it was established.3, 4
Focus of this paper
In general terms, this think piece supports the tenor of the Panel’s assessment of the problems associated
with the RMA, but it does not support all their suggested solutions. The focus of this paper is on concerns
about the proposed governance, institutional arrangements, and processes for preparing, approving, and
implementing Natural and Built Environments Plans (NBA Plans) and Regional Spatial Strategies (RSSs). The
primary questions the paper addresses are:
1. Are the proposed governance, institutional arrangements and processes for the preparation, adoption and
implementation of NBA Plans and RSSs the best available for resolving the challenges identified within the
current RMA regime?
2. If the proposed arrangements are not the best, what principles and what alternatives should be considered to
better resolve these challenges?
Key findings of this paper
The paper concludes by recommending:
NBA Plans should be prepared as a composite of district and regional plans for each district. Each of
these Plans should be developed using committees made up of elected representatives from the
affected district council and the affected regional council.
RSSs should be prepared by a single joint regional committee administered by a regional council, with
prescribed membership, duties, powers, and obligations. This committee should be empowered to
make the final decision on the RSS. The committee would have representatives from all district / city
and regional councils on it. Central government, iwi / Māori, and infrastructure / network suppliers
would also be represented on the committee. All parties should be required to give effect to the
matters recorded in their RSSs. RSSs should include the matters currently addressed in Regional Policy
Statements.
3
This is to: enable democratic local decision-making and action by, and on behalf of, communities; and to promote the social, economic,
environmental, and cultural well-being of communities, in the present and for the future.
4 Purpose of local government, section 10, Local Government Act 2002.
Page | 5GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT I JULY 2021
Structure of paper
The paper commences by summarising relevant content from the Panel report, as well as that included in
the exposure draft of the NBA Bill and the recent Parliamentary Paper explaining the proposed content of
the NBA Bill.5 The paper then outlines the implications for local government arising from this content and
provides information to support the adoption of alternative solutions.
Problem statement
The drivers for change to the RMA – as identified in the Panel’s report, may be summarised as follows:6
Current land and water use is proving increasingly unsustainable – biodiversity and ecosystem health
has been degraded.
Decisions have entrenched ‘subjective ‘interpretations of such things as ‘amenity’ values.
Environmental limits need to be given more prominence as a key purpose of resource management.
Resource management decisions have contributed to increased land values and exacerbated housing
supply challenges.
‘Effects management’ does not provide sufficient strategic and spatial planning and does not enable
development e.g., to resolve housing supply challenges, to occur where and when it should be.
More active effort is required toward decarbonisation and adaptation / building community resilience
against the effects of climate change.
Successive amendments to the RMA have made it unwieldy, litigious, and complex.
RMA plans and processes are numerous, difficult to navigate and vary in quality.
National direction lacks coherence.
Tools and processes for meaningful Māori engagement are inadequate.
In addition, and importantly – in terms of the purpose of this paper, the Review Panel found that ‘the
institutional landscape for resource management in New Zealand is extremely complex’. The Panel said the
RMA regime suffered because ‘there are numerous decision-makers and a lack of clarity about their
respective roles and responsibilities’.7
Government’s proposed solution
Legislative solution
The Natural and Built Environments Act, the Strategic Planning Act and the Managed Retreat and Climate
Change Adaptation Act are viewed as overcoming the current problems by:
Establishing a binding set of positive national outcomes and priorities for natural and built
environments, rather than using the ‘effects management’ regime under the RMA.
Recognising the concept of Te Mana o te Taiao and the need for more active involvement of mana
whenua in resource management decision-making.
5 If you are familiar with this background material, we recommend you focus on the content of the paper commencing at page 7.
6 These problems and challenges are more extensively described in the ‘Parliamentary Paper on the exposure draft’ which accompanied the release
of the exposure draft.
7 The Panel’s report makes it apparent the Panel did not have confidence in the ability of all councils and all council staff to effectively manage their
resource management policy and implementation tasks.
Page | 6 Establishing a system of biophysical limits and targets for resource use and development.
Providing better national direction by preparing a robust National Planning Framework.
Reducing the number of plans and improving their quality by combining plans for each region.
Streamlining the process for preparing plans and using the content of the new plans to reduce the
effort spent on individual resource consents.
Improving evidence gathering, monitoring, compliance, and enforcement processes.
Moving toward a more equitable and efficient resource allocation system.
Giving more recognition to the need for Plans to provide measures providing for adaptation to climate
change, the avoidance of risks from natural hazards, and better mitigating the emissions contributing to
climate change.
Regional Natural and Built Environments Plan (NBA Plan) - purpose
Government’s solution includes a requirement for local government to prepare two new planning
instruments. The first is a Regional Natural and Built Environments Plan (NBA Plan). It is proposed that these
Plans will:
Combine regional policy statements, and all regional and district plans within a single plan for each
region – in the manner of the Auckland Unitary Plan.
Reduce the number of planning documents from more than 100, to just 14.8
Require the combined plans to be consistent with Regional Spatial Strategies (see below for further
details about these Strategies).
Require the NBA Plans to reflect the proposed purpose of the NBA Act.9
Require the NBA Plans to reflect urban design considerations – rather than ‘amenity’ considerations (NB
it is intended that more details about these urban design considerations will be provided within one of
the elements of the proposed National Planning Framework).10
Regional Spatial Strategy (RSS) - purpose
The second instrument is a Regional Spatial Strategy (RSSs). The Panel envisage RSSs being an instrument to
help resolve fragmented resource management decision-making between central and local government.
Similar fragmentation is viewed as existing between regional and territorial authorities and between
different legislative requirements with effect on resource management. The proposed RSSs would:
Focus on the major strategic issues and opportunities for a region, including significant anticipated
changes in land use, environmental management, major urban and infrastructure requirements, and
the future transport corridors needed to accommodate projected growth.
Set 30-year / long-term measurable objectives and milestones.
Describe, geographically, how the limits and targets set through combined NBA Plans and National
Policy Statements might be implemented.
8 The February 2021 Cabinet paper (paragraph 104) acknowledged this may be challenging. They sought assurance this would be practical, given the
diverse nature and complexity of existing RMA plans.
9 The current proposed wording of this new purpose statement is …to promote the quality of the environment to support the wellbeing of present
and future generations and to recognise the concept of Te Mana o te Taiao and, subject to these matters, avoid, remedy, or mitigate the adverse
effects of activities on the environment.
10 The purpose of the National Planning Framework is proposed to be to address matters of national significance or matters where national
consistency would be desirable. It is proposed that the National Planning Framework would include and replace existing forms of national direction
and will combine the current functions and powers of existing national policy statements, national environmental standards, most (if not all)
regulations and national planning standards under the RMA.
Page | 7GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT I JULY 2021
Integrate the resource management-related matters inherent in the Local Government Act (LGA), the
Land Transport Management Act (LTMA), and the Climate Change Response Act (CCRA).
Proposed governance arrangements and processes to
prepare NBA Plans and RSSs11
In the view of the Panel, New Zealand’s future environmental management system should be based on
streamlined and clarified roles and responsibilities. The Panel’s key solution is to recommend shifting more
responsibility to central government and to regional committees12 and to shift more responsibility to
‘executive’ experts rather than elected persons.
Natural and built Environments plans (NBA Plans) - process
The Panel propose that a single regional NBA Plan would be developed by a regional committee
(see following process diagram). The Plan would cover the resource management planning needs
of all the local authorities in a region i.e., it would combine the district and regional plans and
the regional policy statement for a region.
The proposed regional committees would be made up of representatives of central government,
the regional council, all constituent territorial local authorities (TA’s) in the region and mana
whenua. Each regional committee would be served by a secretariat made up of officers capable
of administration, plan drafting, policy analysis, coordination of public engagement and the
commissioning of expert advice etc.
There would be no ‘draft plan’ released for consultation prior to notification. Instead, the
regional committee would prepare a ‘discussion document’. The content of this discussion
document would draw on:
National direction, as provided in a National Planning Framework.
The purpose statement, and the national outcomes to be included in the Natural and Built Environment
Act and the Strategic Planning Act.
Outcomes recorded in the proposed RSS.
Policy judged as being ‘effective’ – as drawn from existing RMA plans.
Trends revealed by state-of-the-environment data.
Content of mana whenua planning documents.
When the issues and outcomes, land use patterns, resource pressures and ecological values are
regionally common, NBA Plans would apply consistent ‘regional’ objectives, policies, and
methods across the area covered by all the TAs in a region. Some capacity for local variation,
may be exercised when there are clear geographic differences that justify this variation.
11 We have drawn on both the December Cabinet Paper and a paper prepared for LGNZ by Simpson Grierson (November 2020) to describe
Government’s intentions and to assess the high-level implications of these changes for local government.
12
Except for Auckland, Gisborne, Tasman, Nelson, and Marlborough, this would take responsibility away from individual district and city councils. It is
uncertain how the Panel’s recommendations will affect unitary district councils – many of whom are known to have constrained resource
management capacity and capability.
Page | 8NBA plans – panel / central government proposals
NB. This reflects our current interpretation of the proposals - noting there are options and there are some
matters requiring further definition.
Serviced by a Establish a Regional NBA Plan Representatives - from central
secretariat with Committee government departments, territorial
administration, local authorities in the region and
planning and the regional council and mana
Prepare a Regional NBA Plan
engagement whenua
discussion document
expertise drawn
from the local
authorities of a Facilitate public engagement on
Purpose – establish policies and
region. discussion document
rules to avoid, remedy and mitigate
the adverse effects of activities.
Prepare draft Regional NBA Plan
Content – references to matters
outlined in National Planning
Invite expert review of draft Framework, RSS, NBE Act – purpose
Regional NBA Plan by MfE Official and outcomes, appropriate policy
from existing plans and regional
policy statement, responses to state
Notify and invite submissions on
of the environment trends, mana
draft Regional NBA Plan
whenua plans, etc.
Appoint Environment Court Judge to
lead a draft Regional NBA Plan
hearings panel.
Apply a truncated appeals process
to resolve matters upon which
agreement cannot be reached on
the draft Regional NBA Plan
hearings panel
Each local Implement the Regional NBA Plan
authority requirements.
Page | 9GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT I JULY 2021
The regional committee would facilitate widespread ‘engagement’ on the ‘discussion document’
with the public and stakeholders. The results of this engagement would provide the regional
committee’s secretariat with the information needed to draft a plan.
Prior to formal notification of the plan, the Ministry for the Environment would commission an
expert reviewer to review the draft plan. This review would determine the Plan’s adequacy with
respect to such matters as its:
Alignment with national direction, targets, and environmental limits.
Consistency with the outcomes provided by the RSS.
Robustness of policy logic.
Following notification and a call for submissions, an independent panel, chaired by a sitting
Environment Court Judge, would hear submissions, review the draft NBA Plan, and make
recommendations on its provisions, using a process like that applied to the processing of the draft
Auckland Unitary Plan.
A streamlined appeal process may then be used13. Under these streamlined arrangements, where the
regional committee accepts a recommendation of the hearings panel, appeals would be limited to
points of law. When the committee rejects a recommendation, then an appeal would be allowed on
the merits of the point in contention, to the Environment Court. These appeal rights would be
available to anyone who had standing to appeal. There would be further rights of appeal to the Court
of Appeal and Supreme Court, but only with the leave of those Courts.
Regional spatial strategy (RSS) - process
The Panel envisage the preparation and approval of RSSs also being the responsibility of some type of
regional committee (see following process diagram). This would be a different committee to that established
to prepare the NBA Plan.
The RSS regional committee may comprise an independent chair, local government officers and
representatives of central government, network infrastructure providers and mana whenua. Members of
the committee would be required to consult with the bodies that they represent and would then be
responsible for representing the views of that body at regional committee meetings. The committee would
have the final mandate to approve the RSS. In large regions not every local authority or mana whenua
groups would be directly represented on the Committee – to be practical regarding size.
The Panel suggest that before final approval, the committee ‘should make best endeavours’ to satisfy itself
that the local authorities and mana whenua in the affected region support the draft RSS - in so far as the
content of the Strategy relates to or affects their region or district or rohe. The committee would use a
modified form of the special consultative procedure – as currently listed in the LGA, to achieve a ‘consensus
decision’ on the content of the RSS.
As was the case with the NBA Plans, there would be no ability nor requirement for either the relevant
regional council, and all constituent TAs, to approve or indeed adopt the final RSS14. Nevertheless, it is
13 This would be like that applied during the development of the Auckland Unitary Plan
14This would imply some elected members having responsibility for provisions applying to areas outside their elected mandate.
Page | 10Regional spatial strategies - panel / central government proposals
NB This reflects our interpretation of the proposals - the proposals contain options. Other matters require
further definition.
Serviced by a Establish a Regional Spatial Strategy Committee composition –
secretariat with Committee Appoint Independent Chair plus
administration, representatives from local
planning and government (officers) and
Members of the committee consult representatives of central
engagement
with the bodies they represent and government, network
expertise drawn
are responsible for representing the infrastructure providers and mana
from the local
views of that body at regional whenua
authorities of a
committee meetings
region.
Committee Prepare draft RSS Purpose – Focus on the major
members make strategic and spatial planning
‘best endeavour’ issues and opportunities for a
to satisfy Committee applies ‘special region, including significant
themselves that consultative process’ to achieve a anticipated changes in land use,
the local consensus decision on the content environmental management,
authorities and of the RSS major urban and infrastructure
mana whenua in requirements, and the future
the affected transport corridors needed to
region support the Committee approves the RSS accommodate projected growth
draft RSS - in so and housing supply.
far as the content Set 30-year / long-term
of the Strategy Each local authority in the region measurable objectives and
relates to or implements the RSS milestones.
affects their Describe, geographically, how the
region or district limits and targets set through
or rohe. combined NBA Plans and National
Policy Statements might be
implemented.
Integrate the resource
management-related matters
contained in the LGA, LTMA, and
CCA
Page | 11GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT I JULY 2021
expected that accountability for implementation of the RSS would still sit with all councils in the region. It
may also be the case that the SP Act may provide for a responsible Minister (or Ministers) to be accountable
for the delivery of the aspects of the Strategy relating to them. It is not envisaged that mana whenua would
be accountable for implementation.
RSSs would need to be consistent with the purposes of the Natural and Built Environments Act (NBA Act),
Local Government Act (LGA), Climate Change Response Act (CCRA) and Land Transport Management Act
(LTMA), and the national instruments prepared under these Acts. These national instruments would include:
National policy statements and national environmental standards and environmental limits (as
prepared under the RMA and likely to be transferred to / or further developed under the NBA Act).
The National Adaptation Plan (which is to be informed by the National Risk Assessment prepared by
MfE under the CCRA).
The Government Policy Statement on Land Transport as prepared under the LTMA15 and the
Government Policy Statement on Housing and Urban development.16
RSSs would also be required to take into account other national strategies and plans, including the Emissions
Reduction Plan prepared under the CCRA and the national 30-year Infrastructure Strategy - a draft of which
was recently released by the New Zealand Infrastructure Commission.
Implications for local government
The past performance of local government has demonstrated that it is not afraid to take-up opportunities to
harness those aspects of a reform agenda that will enable them to improve the lives and well-being of their
communities. This has included agreeing to joint service arrangements between neighbouring councils. It
also includes a likely willingness to respond to stronger national directives, and a willingness to apply
truncated plan-making procedures.
It is all too easy for central government and others to point the finger at local government as the cause for
the environment being inadequately protected or for decisions being made too slowly and too litigiously.
Local government are said to have contributed to the unpredictability and inefficiency of the regime for
applicants.
These failings are not attributable to local government decision makers on their own. However, more clearly
defined environmental limits, expanded compliance monitoring and the further provision of non-regulatory
advice would have helped the cause. More certainty, more speed, less cost, and better environmental
outcomes are universal desires. On other matters, such as the somewhat laborious plan making process,
failings have been influenced by the nature of the processes local government has been required by law to
apply and the absence of comprehensive national instruments.
There is much in the overall architecture of resource management legislative reform to commend. There is
clear merit, for example, in the proposition that the NBA Act and the SP Act move away from the primary
15
It is proposed that the purpose of the LTMA could be amended to refer to social, economic, environmental, and cultural wellbeing, which would
thereby establish the four well-beings as a common thread across the SPA, NBEA, LGA and LTMA.
16 As prepared under the Kāinga Ora-Homes and Communities Act 2019.
Page | 12‘effects-based’ approach embodied in the RMA, toward more of a futures focused / ‘promotion of positive
outcomes’ approach, across all four well-beings. This active planning approach is evident in the reworded
‘purpose statement’ and the ‘national outcomes’ recommended for inclusion in the NBA Act.17
There is also good reason to support these requirements because they will:
Give certainty to environmental protection via the better definition of environmental limits.
Strengthen the planning system to better enable management of cumulative effects.
Better provide for long-term infrastructural needs.
Take measures that would help local government to contribute to meeting housing supply needs.
What needs to be avoided is the ‘anything has to be better than the RMA’ approach. Critical appraisal is
required to ensure the proposed changes will unquestionably improve on the status quo. Some of the
proposed matters for inclusion in the new legislation do not achieve this objective.
Inappropriate limits to local decision making
The Panel’s report18 and the content of the exposure draft of the NBA Bill do not adequately recognise the
importance of the connection between local elected representatives and resource management decision
making. Local democracy will be undermined because:
Individual councils would have a restricted decision-making role in the creation and final approval of
the NBA Plans and the RSSs.
Decisions about the final content of the NBA Plans would be made by regional committees, not by
individual councils.
The proposed regional committee members for both NBA Plans and RSSs would have authority to
represent and ‘act on behalf’ of their constituent appointing bodies but not necessarily be directly
accountable to these bodies.
Local government officers rather than elected members may be appointed to the regional committee
responsible for preparing the RSSs.
The seats and voting rights to be held by central government and mana whenua on the RSS regional
committee may become more numerous than those held by local government.
Not all local authorities and not all iwi may be able to be represented on the RSS regional committees
because of a concern that these committees would become too big to be effective and efficient.19
If the concerns about the content of NBA Plans or an RSS are not able to be resolved by each council
submitting and participating in the proposed plan making ‘consensus decision making process,’ then
their only fall-back option is to become an appellant on their own plan.
No clarity is provided about the ability of the RSS to require regional network infrastructure providers
to fund and supply the infrastructure jointly identified as being necessary for the future of a region.
The net effect of the above measures is that the ‘place-making’ voice of territorial local authorities would be
much diminished compared to the ‘local voice’ opportunities provided under current arrangements. This is
17 These views were also expressed in a paper prepared as background for a discussion that took place with Hon David Parker and regional council
leaders on 26 June 2021.
18 Details about many of these processes are not included in the ‘Parliamentary Paper’ issued with the ‘exposure draft’ of the NBE Act. Rather – they
reflect the content of the Panel’s report. The fact that government has not taken a position on these matters implies the Panel’s proposals may still
be open to amendment. In support of this view, the Cabinet paper (paragraph 105) rightly notes the importance of retaining some level of
subsidiarity for local communities (i.e., delegating decisions to the lowest practicable local level), to ensure they retain a voice in plan-making
processes.
19 It is unclear how treaty settlements will align with these proposals.
Page | 13GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT I JULY 2021
despite local communities becoming increasingly concerned about the quality of the environment in which
they live. Local government is the best platform to express these concerns and to reach agreement about
solutions.
Local contributions to resource management decision-making are a vital tool for local government to be able to fulfil
their community governance roles. This is the role councillors have been elected to undertake, on behalf of the
communities they represent. Without this ‘bottom-up’ voice it will be more difficult to achieve community cohesion,
pride, heritage protection, transparency, biodiversity protection, climate change adaptability, necessary infrastructure
provision, protection against natural hazards and – in general terms, accountability for the actions required to achieve
desired environmental outcomes and the community well-being objectives for which local government was
established.
In addition, councillors make revenue and rates decisions about the funding they invest in local ‘place-
making’. As the maxim goes – ‘those who pay should have a say’ about how their funding is being used. The
proposals diminish the ability of territorial authorities to ‘have a say’ but nevertheless retain the obligation
for them ‘to pay.’
Too much power to the centre
The proposals imply more direction, consistency, and oversight of resource management responsibilities by
central government.20 An extended array of national policies and instruments are proposed. These would be
consolidated into a proposed National Planning Framework.21
This is not all bad. There is a strong case for expanded national guidance on matters of distinct national
interest. However, an agreed line needs to be drawn to define which decisions more clearly should be made
by who. Efficiency gains may be achieved by lifting more resource management responsibilities to central
government. But there is also a need for individual local authorities to have effective opportunities to
continue to exercise their ‘democratically-elected’ resource management voice. The Panel’s proposals lift
the proposed line too high. There is a need for clearer principles and better definition of when decisions
should be elevated to central government.
Other uncertainties and challenges
Many other uncertainties arise for local government. Principal amongst them, are:
Regional Policy Statements: Regional Policy Statements have played a resource management
‘integration role’. Their influence has been limited to the scope of the Resource Management Act. A
broader scope is required to enable other spatial, and strategy matters to be addressed. These include
the spatial and strategy matters raised by the Land Transport Management Act and the new Urban
Development Act – as well as the matters arising from three waters and energy infrastructure / network
planning. The proposed RSSs will achieve this objective. However, the Panel’s proposal that Regional
20 Increased national direction may make some aspects of plan making less contentious. It would also make plan content and outcomes more
consistent. On the other hand, the content of national directives may not find equal favour in all regions. This is because it will diminish the
opportunity for the expression of local values. It will also reduce the ability of the plans and strategies to reflect geographic variance.
21 The various elements of the National Planning Framework will be given effect via an order in council initiated by the Minister for the Environment.
Exercise of this powerful responsibility places an onus on the Minister to only exercise this power after the applying robust consultative processes.
Page | 14Policy Statements be absorbed into NBA Plans is misplaced. Regional Policy Statement matters that are
best addressed in the RSS.
Sequencing of instruments: The sequencing of the development of the RSS and NBA Plans may be
problematic (NB Cabinet’s current intent is to give priority to the preparation of the NBA Act).22 To
avoid unnecessary rework and inconsistency, proposed instruments should be prepared in the following
sequence:
o National Planning Framework including National Planning Standards.
o Regional climate change adaptation plans23.
o Regional Spatial Strategies.
o Natural and Built Environments Plans.
Transition provisions: Local government is currently committing significant effort toward the
amendment of their district and regional plans. This is primarily to accommodate the directives
contained in the NPS for Urban Development and the NPS for Freshwater Management. There is
uncertainty about the effect of the proposed regional NBA Plans and RSSs on these efforts.24 Plan-
making processes are very expensive and burdensome. In some cases, difficult issues associated with
giving effect to national direction have only recently been settled through lengthy Environment Court
proceedings. In addition, communities have participated in good faith in these recent processes and
have often expended large sums of money as part of that participation. This good work should not be
allowed to be wasted. A transition arrangement is required that recognises and provides for the
currency of newly amended plan provisions. Councils should not be required to re-notify provisions that
have only recently been settled or which otherwise remain fit for purpose.
Regional Committee: It is unclear how the proposed NBA Plan regional committee and the RSS regional
committee relate to each other, despite them potentially having many members in common25. It is also
uncertain who would ‘house’ each of these committees. Would they be a committee of all the local
authorities of the region, or would they be a committee of the regional council (with prescribed
membership, duties, powers, and obligations?)26 Greater clarity is required on this matter. There is
merit in them being modelled on Regional Transport Committees.
Delivering better infrastructure and improving housing supply: Improvements to the provision of
infrastructure and housing are an outcome sought from the NBA and SP Acts. This is despite land supply
being only one of many factors contributing to the current housing supply challenge. There are also
concerns about the interface between the housing supply role of local government and the expanding
role being played by Kāinga Ora under the Urban Development Act. Expectations about the housing
supply outcomes to be achieved through amendments to the RMA should be carefully moderated.
Central government agencies such as Waka Kotahi and Kāinga Ora, as well as network infrastructure
providers, should be required to take account of the content of RSSs in preparing and funding their
long-term infrastructure development plans. Without this, it will be more difficult to achieve housing
22The current intention is the NBE Bill will be introduced late in 2021 and passed before the end of 2022.
23 There is currently no certainty that a regional climate change adaptation plan will be required to be produced but it makes sense for these to be
prepared. More importantly, to avoid losing focus on the absolute priority importance of addressing climate change challenges, central and local
government have a duty to develop more clarity about the boundaries of accountability of local government for addressing their respective
decarbonisation and adaptation / resilience concerns.
24 One of the drivers for these changes is the need to accommodate the directives contained in the National Policy Statements for Freshwater
Management (NPS FWM) and Urban Development (NPS UD).
25 Officials have advised the same committee could be used for both.
26
If they are to be a joint committee of the whole, then all local authorities and other parties would become defendants on appeal of any decision
made by that committee. Other questions also arise. How would the work of the Committee be funded? What happens to the Committee after the
RSS is approved – should it be dissolved? Some answers to these questions are provided later in this paper.
Page | 15GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT I JULY 2021
supply objectives. There is no point in granting these parties a seat at the table if they are not going to
be bound by the joint decisions made by these RSS regional committees.
Reform overload
A further concern is the sheer scale and cumulative effect on local government of the many aspects of
central government’s current ‘reform’ agenda. Resource management legislative reforms are expected to be
in place by the end of 2022. Changes are also underway with effect on the funding of infrastructure, urban
development,27 regional development, land management28 and the provision of tertiary skills and training
services29. Other aspects of central government’s reform agenda – with effect on local government, include:
A water regulator ‘Taumata Arowai’ has now been established.
A National Emissions Reduction Plan will be in place by the end of 2022 with uncertainty about the role
that may be expected of local government.
Territorial authorities’ three waters infrastructure responsibilities are likely to be delivered by four
entities spread across New Zealand by early 2024.
District Health Boards are about to be disestablished and replaced by a single ‘Health NZ’ entity, with
four regional offices.
A new regional development agency (‘Kānoa’) has been established by MBIE. This will replace the
Provincial Development Unit. It appears to have no obligation to work with or through local
government’s regional development agencies.30
Despite the work of the ‘Future for Local Government’ enquiry panel, the immediate challenge for local government is
how best to address local government’s resource management role in the face of the sheer magnitude, broadness,
complexity, lack of integration, and apparent absence of ‘overview’ of the cumulative effects on local government of
central government’s current multi-functional reform agenda. A more integrated central government agenda and a
clearer statement about expected cumulative outcomes is required.
Principles to guide the design of preferred resource
management governance accountabilities, instruments, and
processes
Subsidiarity and accountability - principles
In-house papers prepared by officials identify a set of ‘governance principles’ that may be considered in
designing NBA Plan and RSS development processes and implementation responsibilities. There are gaps and
a mismatch between these principles and some of the current proposals, as outlined in the following table.
27 Kāinga Ora is now playing a much stronger role than in the past in shaping urban communities. The National Policy Statement on Urban Form will
also have a significant effect on the planning of New Zealand’s larger urban centres.
28
The primary effect of the National Policy Statement on Freshwater Management will be changes to farming practices.
29 16 poly-techs have been merged to form one national entity Te Pūkenga.
30 Almost all these changes will take place before the ‘Future for Local Government’ review panel presents its final report (April 2023).
Page | 16Officials draft principles Commentary / thoughts
Clarity of roles and Conditional support. Accountability for delivery requires certainty
responsibilities about the roles of all NBA Plan and RSS agencies. Equally important is
clarity about the relationship between different planning instruments
e.g., the NBE Plans and RSS and other instruments such as Regional
Transport Plans and Long-Term Plans. There is also a need for more
clarity about the boundary of accountability between central and local
government.
Decision-making is well Conditional support. Current proposals are not sufficiently grounded in
informed and public local information provision and participation opportunities.
participation proportionate
Effective representation of Conditional support. Different interests must be provided with effective
differing interests, noting this but efficient representation opportunities. In the preparation and
does not mean direct approval of NBA Plans and RSSs, local representation of local elected
representation for every representatives must be a foundation consideration in designing future
constituent body resource management governance arrangements.
Appropriate accountability and Conditional support. Current proposals are not sufficiently grounded in
transparency for decision- local accountability. Nor is there enough clarity about how network
making infrastructure providers, MBIE, DOC, MPI etc., will be made
accountable for the integrated decisions made via RSSs that may affect
them.
Efficient, cost-effective, and Conditional support. Current proposals may be efficient, without being
workable effective. They also fail ‘workability’ principles.
Ensures integrated decision- Conditional support. Current proposals are not the best way to achieve
making wherever possible integration. Local variation should be more clearly provided for. Details
within regions, whilst allowing about how various central government instruments will be integrated
for variation to reflect the are currently unclear.
different circumstances of
communities
Give effect to the principles of Support.
Te Tiriti o Waitangi and uphold
the integrity of Te Tiriti
settlements
Able to be adapted over time Support.
to fit the changing needs of
communities and the
environment
Page | 17GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT I JULY 2021
The core resource management question for New Zealanders to address is whether – and to what degree,
local government or central government should be at the centre of future resource management decision
making.31, 32 The Panel’s report fails to adequately address this important question. The exposure draft of
the NBA Bill also appears to reflect a similar failing.
Individual local councils must remain at the heart of decision making about the policy to be included in NBA
Plans. The preferred system should be one based on the principle of ‘subsidiarity’ – a system in which
decisions are made by those most affected by those decisions33. This means that decisions about ‘place-
making’, i.e., determining the character of the towns, cities and the regions in which people live, work, play
and invest should appropriately – and in the main, be made by those who are democratically elected to
represent the residents who live in these places34.
This perspective is strongly supported by long-term and highly respected resource management barrister Dr
Royden Sommerville. Mr Sommerville notes that effective resource management jurisprudence requires
application of values-based and participatory democratic systems, with devolution, subsidiarity, and
pluralism at their centre.35
The National Council of LGNZ reflected their concerns about the diminution of local government’s role in resource
management by adopting (2020) the following principles:
Those that are accountable for policies and their implementation need to have a meaningful role in the
development and approval of those policies.
Planning decisions should be taken at the level of those most directly affected. That
requires retaining a strong degree of local planning.
Local authority staff
There is also a concern about the proposed elevated responsibilities to be placed on local authority officers’
shoulders. Determining preferred resource management policy is not a ‘technocratic’ matter for officer
decision making, although agreed policy must be informed by officer-generated evidence and knowledge of
the intricacies associated with the inevitably complex nature of resource management legislation.
While it is perhaps true that some smaller councils struggle to fund, recruit, and retain strong planning staff,
this problem is not best remedied through an overwhelming diminution of the role of territorial local
31We have drawn on the paper referenced in an earlier footnote, as prepared for LGNZ by Gerard Willis, to help shape these principles.
32 Our focus here is on the policy decision-making role of councillors. We can see distinct advantage in neighbouring local authorities seeking out the
capability and capacity benefits that may arise from applying joint service arrangements for the processing of resource consents and private plan
changes, and consent monitoring.
33 See ‘Localism Q & A’s’ prepared by Dr Mike Reid from LGNZ for a fulsome discussion about the value and importance of subsidiarity.
34
It does not make sense for decisions about the character of a particular town’s CBD or local parks to be decided at a regional or national scale.
Local councils must not allow themselves to be relegated to the role of being an administrator of the place-making decisions made by someone else.
35 Dr R J Somerville QC ‘Improving the RMA: Legal Principles’ 2004.
Page | 18authorities.36 The problem is better remedied by applying many of the remainder of the Panels’
recommendations, and by incentivising territorial local authorities to partner up with their neighbours if
they feel this is best for their communities.
Local accountability concerns about the policy to be included in a Plan do not equally apply to the
implementation of the operational aspects of the Plan e.g., information gathering, the processing of
resource consents and / or the monitoring of compliance. There are considerable capability and capacity
enhancement opportunities if these services are delivered across a region rather than via a single local
authority. Shared service arrangements are a good solution.
The benefits arising from this solution should be balanced against the effect on local authority staff of the
proposed changes to resource management legislation. ‘Regional’ or combined plan making, and strategy
development would significantly reduce the need for employment of planners at the district level. The loss
of these staff, when combined with the loss of staff to the entities to be established to manage the ‘three
waters’ etc., will likely further erode the ‘critical mass’ required to make a local authority viable.
Preferred NBA Plan and RSS solutions
NBA Plans – preferred solution
NBA Plans should be a composite of district and regional plans for each district (see the following process
flow diagram).37 These Plans should also include the content of regional coastal plans.38 Each of these Plans
should be developed using committees made up of elected representatives from the affected district council
and the regional council.39 Under this arrangement, there would be a joint plan, and a joint committee to
prepare this plan, for each district / territorial local authority in an area.
One method for developing these joint plans would be for each district and region to take responsibility for
developing their own draft plans. These would be developed in parallel and then the two parts would be
integrated. The subsequent steps would be like those recommended by the Panel.
Require the Joint Committee to prepare a joint proposed unitary plan incorporating regional, coastal
and district planning matters and the other requirements specified in the NBE Act for each district.
Delegate authority to the Joint Committee to adopt the proposed Plan.
Notify and invite submissions on the proposed unitary NBA Plan.
Appoint an experienced Commissioner or a retired Environment Court Judge to lead a hearings panel
(inclusive of regional, district, mana whenua and DOC representatives) to resolve different views
expressed in submissions on the proposed NBA Plan.
Apply a truncated appeals process to resolve matters upon which agreement cannot be reached on the
unitary NBA Plan decisions of the special hearings panel.
36 Furthermore, there is a case for regional councils to continue to expand the collaborative support provided to their colleague regional councils via
their nation-wide network of Special Interest Groups (SIGs).
37 This may include a joint committee made up of neighbouring unitary district councils.
38
Unless the affected territorial local authorities should decide to develop a plan covering contiguous districts – as is the case in the Wairarapa.
39 The only difference to the current regional transport committee model is that there would be a joint regional / district committee for each district
in a region – not just one for the whole of the region.
Page | 19GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT I JULY 2021
Preferred alternative for the preparation of NBA plans
Serviced by a joint Establish a joint territorial local Representatives – experienced
regional / district authority / regional council NBA resource management elected
secretariat with Plan Committee for each district councillors from the territorial
administration, local authority and the regional
planning and council, mana whenua
engagement Require the joint committee to representatives and a DOC
expertise. prepare and adopt a joint proposed official
unitary plan incorporating regional,
Invite coastal and district planning matters Purpose – establish policies
neighbouring and rules to avoid, remedy and
territorial local mitigate the adverse effects of
authorities with Notify and invite submissions on the activities.
common resource proposed unitary NBA Plan
Content – reference matters
management
outlined in National Planning
challenges to
Appoint Planning Commissioner or Framework, RSS, NBE Act CC
establish joint
retired Environment Court Judge to Act– purpose and outcomes,
committees with
lead a hearings panel (inclusive of appropriate policy from
their neighbours /
regional, district, mana whenua, and existing plans.
the regional
a DOC representative to resolve Include relevant provisions
council.
different views expressed in from regional policy
submissions on the proposed statements, responses to state
unitary NBA Plan of the environment trends,
mana whenua plans.
Apply a truncated appeals process
to resolve matters upon which
agreement cannot be reached on
the proposed Regional NBA Plan
hearings panel
Require each local authority to
implement the unitary NBA Plan
requirements with the help of
service level agreements enabling
establishment of a scaled-up officer
resource management.
implementation unit.
Page | 20You can also read
