RMA needs a tune-up - start by banning lawyers

By Neville Bennett

Friday 5th April 2002

Parliament is discussing, in select committee, another revision of the Resource Amendment Act (RMA).

Progress is deadlocked. The critical impasse focuses on the Greens' inclination to increase popular involvement in resource management, while Labour prefers to expedite processes.

As frequently happens, an issue rests on a choice between democracy and efficiency. But there is more at stake. There are times, when the lawyers wax fat and delays seem unconscionable, when it may be wondered if this whole act should not be revoked.

It is unique, for no other country allows local communities to decide the thrust of their development. No wonder business and farming are often affronted by not getting their way. Perhaps the act has a Jekyll and Hyde personality. What follows is an attempt to assess it.

Let it be admitted the RMA was a marked improvement on the previous regime, under the Town and Country Act, that blocked much development. The RMA amalgamated 54 pieces of legislation, much of which was poorly understood and often frustrating to entrepreneurs.

A symbol of its action was a remote cousin of mine who obtained a house in the country by swearing that he was a committed goldfish breeder. This gave him an "economic use" and planning permission to build. Needless to say, there have been no goldfish on his property since the RMA became law.

The old regime completely outlawed many activities. The RMA is permissive - a land occupier can undertake any action unless it is specifically prohibited.

Even then, an occupier can still apply for consent for a non-qualifying activity. The application will be heard and much tension will be resolved. If the application succeeds, it may well be conditional.

Last year 54,000 consents were given and only 1% were sufficiently contested to go the Environment Court.

Being a forum where important issues can be thrashed out, the RMA is friendly to development, it diminishes market failure and permits development to proceed, albeit often with judicious safeguards.

It is a transparent process. The site where a new activity is proposed has placards inviting discussion. Subsequently, the hearing is well advertised (and often well attended).

This is a valuable feature, for justice is seen to be done and local people can obtain some satisfaction by making a submission and having their say. Neighbours have to communicate and there is perhaps, too, a little green-mail or barter over the price of removing an objection.

For many people, a major advantage of the system is that local government is the locus of power. This is much debated, for many people feel Wellington should make decisions.

When I spoke at an American think tank last year about New Zealand democracy, some of the audience thought local involvement was wrong in principle and would in practice promote bribery.

But one suspects most people are happy to see the state devolving powers to local government.

Liberals are comfortable with this concept but it may irritate some foreign businessmen who might feel outcomes should be more predictable. Yet it seems, on balance, to be a strength that decisions are taken by people who have been locally elected.

They are generally alive to the need for development and job creation, while being also conscious of the community's desire to conserve the environment. The RMA sees local politicians make decisions rather than Parliament or bureaucrats.

Best of all, the focus of the law is on the defence of the environment. It did not have a voice previously. It may still be undermined by the cumulative effect of consents. But there is a statutory requirement decision-makers adopt sustainable policies and take cognisance of their effects.

However, there are real problems with the RMA. Some important issues arise, not directly from the act but from the mean dollar-chiselling practices of the regional and district councils.

There are too many local authorities that lack a large revenue base to sustain an effective group of experts. Collectively, the 86 local authorities often lack the expertise to administer the act. Nor do they collaborate effectively to share resources or even discuss best quality practices.

The worst feature of the RMA is that it has spawned an industry. It has provided employment for a huge range of hangers-on. The hearings attract an army of experts, who sit around for days at the expense of those seeking a decision.

Universities and polytechnics are training people for careers in this lucrative business. The process has become slow and expensive. Sometimes this is extended by the spite that exists in communities but also in business groups.

It is understandable lawyers became involved. People seeking a consent (or opposing one being granted) naturally want to present their case in the most effective way, so they hire a professional. However, the lawyers make the most of their opportunities to maximise their incomes. That, too, is understandable but it raises costs.

There is a litigious atmosphere appearing in these matters, perhaps unforeseen when the act was first drafted. There was a case in Canterbury recently where a developer had consents but the developer was held up by an appeal from the regional council. The judge awarded costs against the council.

For what it's worth, my view of the RMA is that it was well intentioned and has made a significant contribution to resource management. Nevertheless, it is not operating optimally.

Perhaps Parliament can find a remedy - banning lawyers would not be a bad start.

Neville Bennett is deputy chairman of the Riccarton/Wigram Community Board and sits occasionally on RMA applications

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