We have five primary areas of concern with the Bill:
1. The Freshwater Planning Process proposals.
These will simply lead to ‘survival of those with the deepest pockets’, and very little individual input. This has been the case in previous similar fast-tracked planning processes with costly and time-consuming requirements for expert evidence, caucusing, cross-examination and rebuttal of evidence, along with extensive mediation and pre-hearing meetings. It is simply outside the costs and expertise of most submitters, and ultimately becomes overwhelming.
Furthermore, these expensive front-loaded requirements are to be cost-recovered from regional councils (who have no control over what processes take place, at what cost or intensity). It will ultimately be ratepayers (of whom farmers pay significant proportions) who pay the price.
We dispute there is an “urgent need to improve freshwater management and outcomes”. The Bill itself does not need to address freshwater management and the changes proposed are not urgent, even on the timeframes proposed in the Package.
The proposals are in part based on those in the Auckland Unitary Plan, which was unique given the Council’s significant resources, staff at hand, experts within city boundaries and large ratepayer base. It was also one of the only plan processes taking place at that time, so sufficient expertise was readily accessible, which wouldn’t be the case if all councils were subject to same time requirements.
We also caution that a requirement to reflect Te Mana o te Wai and Treaty settlements within plans requires sufficient cultural, legal and technical knowledge, resourcing and experience in very complicated matters, and it should be done meaningfully, respectfully and appropriately – not rushed.
These proposals should instead be considered during the full review of the legislation.
2. Enabling Environmental Protection Authority (EPA) to take enforcement action under the RMA
The proposal would empower the EPA to undertake investigation and enforcement actions under the RMA. Given time constraints, no appropriate engagement with stakeholders took place.
The premise for change is that some councils lack capability in regard to their compliance, monitoring and enforcement (CME) functions. A concern of government (and NGOs) has been that not enough enforcement action is taken. This disregards that fewer enforcement actions could be due to an improving in resource users’ understanding of issues and adaptation of good management practices.
We oppose the proposal. There should not be two agencies able to undertake CME of the same matters, in the same area. Far from increasing local decision making (as part of the Bill’s overarching objective) it instead takes away local powers and passes them to a centralised agency, who can intervene and take over local enforcement action matters. The EPA should only become involved and commence investigation and enforcement actions at the request of the relevant local authority.
3. Call in of consents
The proposed change means that unless that aspect of a Council plan is under appeal, a call-in of consents may occur. The current rules apply to coastal, water or discharge permits, but the proposal is to add ‘land use consents’ to this list. Proposals also allow for a call-in of multiple consents concurrently – e.g catchment by catchment.
We have considerable concerns for consent holders. It is not an easy to obtain consent, particularly in relation to water and associated land-use, where external financing is often required. The proposed changes would impact on investment certainty, making it difficult, if not unlikely, that banks would provide finance, given consent and ongoing investment certainty would not be ‘guaranteed’.
We oppose the proposal. The existing RMA provision is sufficient to address concerns. Going beyond that will have significant impact on the certainty of consent, and accompanying investment certainty. This is a matter that should be reviewed as part of the comprehensive review of the RMA
4. Increasing maximum infringement fees under the RMA
There are two primary difficulties with infringement penalties – firstly, any resulting fines directly reduce a person or company’s financial ability to fix the problem. In many cases, the money would be better spent on actual solutions. Secondly, infringement offences are absolute, and those facing the penalty are found guilty automatically, with no chance to query or challenge the matter.
No justification for the significant increase is offered in the discussion of the proposal in the Bill. We seek deletion of the proposal. These ‘strict liability’ offences should not be subject to unreasonable infringement penalties.
5. Extending statutory limitation period to file charges for prosecutions under the RMA
The Bill proposes to increase the current 6-month statutory limitation period for filing charges for certain offences under the RMA to 12 months. A risk highlighted in the Regulatory Impact Statement is that this could result in councils taking more time than required to determine whether to prosecute.
We oppose the proposed increase as it is neither appropriate nor necessary, in that agencies such as councils and the EPA should be able to determine whether or not enforcement action is appropriate within the existing 6 months period. Resource users are entitled to promptness and timeliness in the consideration of complaints against them, and the consideration of issues that may arise in the course of routine monitoring.