Fitzsimons Jeanette: Resource Management Amendment Bill (No 2) — Second Reading 
Fitzsimons Jeanette: Resource Management Amendment Bill (No 2) — Second Reading 
[Volume:608;Page:5324] 
JEANETTE FITZSIMONS (Co-Leader—Green) 
: 
 The House has worked itself into a frenzy—Government and Opposition members alike—about industry’s complaints that the Resource Management Act imposes unacceptable compliance costs on developers. It has assumed the status of Holy Writ yet when one asks for examples there are in fact rather few. We know from practical examples that many of the delays are caused by the applicants not providing all the necessary information or postponing hearings at the Environment Court because they do not have their case ready. We know that the delays due to court overload have reduced considerably since a new division of the court was created a couple of years ago. 
I would like to inject a few facts into this debate. In 2001 the OECD published a study of regulatory burdens on small to medium-sized business in 11 OECD countries. It found that overall compliance costs for New Zealand business are substantially less than such costs in the other OECD countries surveyed particularly in Australia. That was particularly so for environmental consents where fewer consents were needed under the Resource Management Act than were required for businesses in most of the other countries. Further in New Zealand environmental compliance costs are less than compliance with other laws. Of the total compliance cost here—already less than in the other countries surveyed—42 percent comes from meeting tax requirements 32 percent from employment legislation and only 25 percent from environmental standards. 
Many people have forgotten that under the previous legislation separate consents and hearings were needed under the Town and Country Planning Act the Water and Soil Act and a host of other legislation that was replaced by the one-stop shop Resource Management Act. What is more a much greater proportion of applications was publicly notified under the Town and Country Planning Act than under the Resource Management Act. That brings me to the question of notification. The key changes between the No. 1 bill and the No. 2 bill—and the most controversial—are to notification. 
As I outlined in the debate on the first reading the heart of the Resource Management Act is about the right of the public to bring evidence to a hearing on the effects that an application will have. Alongside the evidence from the developer this enables the council or the Environment Court to make an evidence-based decision on whether the application meets the requirements of the Act. It is this right that is now restricted in this bill. Currently this right applies in fewer than 5 percent of all cases anyway. Ninety-five percent of applications are considered without any public submissions and without any hearing. That is because permitted or controlled activities are exempted from notification. In the remaining cases they are exempt if the council decides the effects are minor and if all parties the council deems to be affected give their written consent. So the figures show that councils are currently deciding that fewer than 5 percent of all applications for resource consent have effects that are more than minor. That is certainly counter-intuitive when one looks around at the changes that are happening; the steady loss of biodiversity the steady loss of unspoiled coastline the accumulation of pollutants the loss of views and the loss of amenity. But that is what councils are deciding. 
Let me list just a few of the cases where councils have allowed consent without notification: a multi-storey apartment building in Wellington that caused a neighbour’s house to collapse; Tasman District Council’s decision to allow the top of the Kina cliffs to be removed and the spoil dumped on a coastal reserve leading to a public outcry; the largest poultry operation in the Southern Hemisphere built on wetlands between a river and the sea with a significant effluent discharge; a flock mud landfill at Waipu since found to contain toxic waste; and a coastal permit by Wellington Regional Council to farm  
Undaria pinnatifida 
 in Wellington Harbour—an invasive seaweed that the Department of Conservation is trying to eradicate from Stewart Island and Bluff at considerable cost. This is by no means the end of the list of sites for which councils have allowed non-notified applications where the effects were not minor. Sometimes these cases are picked up when a neighbour refuses consent and the current law requires full notification. Groups like the Forest and Bird Protection Society have often heard of major vegetation clearance or wetlands drainage or coastal development when a non-notified consent has been opposed by a neighbouring landowner and notified. That is the safeguard the Government is now removing. Unfortunately Jim Peters’ suggestion that this is overridden by the Local Government Act is not correct. The Local Government Act applies only where this legislation does not have more specific provisions. 
The only study of this involving three local authorities with 60 applications that were notified showed that 25 percent of them were notified only because the applicant did not obtain consent from those affected. If that is typical we can expect that under this bill the proportion of cases in which the public has a say will drop from less than 5 percent now to about 3.5 percent. We know that some councils are not observing the law in the way they determine both minor effects and persons affected. We have High Court decisions reprimanding councils for the way they already restrict notification. Time allows me to quote from only one. Justice Randerson in  
King 
 v  
Auckland City 
 said: “The discretion to dispense with notification should not be lightly exercised and consent authorities should be wary of making assumptions as to the likely nature and extent of potential adverse effects without the benefit of the views of those who may be affected. Cases such as the present demonstrate the desirability of erring in favour of notification where doubt exists as to the proper course.” 
But those cases that got to the High Court where the councils were reprimanded comprise only the tiniest tip of a very large iceberg because the cost of going to the High Court is prohibitive and most people give up. It is not just the $1500 court fee and the few thousands of dollars of fees to file; it is the fact that there can be no redress for a wrong decision if one waits for a court hearing. The only way to stop the bulldozers obliterating a wahi tapu a historic building or an ecologically important wetland or even undermining one’s house is to seek an injunction while the review is heard. That entails a mandatory undertaking that if one wins the injunction but loses the eventual case one will pay tens of thousands in compensation to the applicant for lost time on the project. Then of course there are still the costs of the case itself and this is when most people give up. 
Simon Upton came to see me in 1999 when he introduced the first Resource Management Bill. He outlined to me the careful balancing act he was introducing. He was also concerned that councils were wrongly withholding notification in some cases. He proposed that reviews of notification decisions should be heard by the Environment Court which is more accessible cheaper and most important versed in the concepts of resource management and much better able than the High Court to decide whether effects on the environment are minor. The High Court itself has recommended this change. Simon saw this as balancing limited notification where failure to gain the consent of affected parties would trigger only a limited hearing rather than full notification. In some ways it was not an unreasonable balance. The previous select committee retained that provision. 
The major decision between that No. 1 bill and this No. 2 bill is that limited notification has been reintroduced by the Government and review by the Environment Court has been removed. So this Government has rigged the law even further against the public and public interest groups than National was prepared to do. This Government has given its support to councils that are breaking the law on notification and getting away with it. The Government knows that judicial review is not a remedy that is available to many but it claims lamely that delays in the Environment Court prevent it from taking on this extra workload. I am looking forward to National members supporting my amendment to reintroduce Simon Upton’s provision for review by the Environment Court. 
Once again justice at high cost is justice denied and this is why the Greens cannot support this bill. That gives me considerable distress. After the huge amount of work I did: chairing a select committee for a year hearing 400 submissions travelling to seven cities negotiating some real improvements to the bill building on the cost and time savings and limiting the reductions in democracy having reported back a bill that was a good balance between the needs of developers and the rights of the public and having agreed to a number of compromises that would not have been my first choice I was looking forward to voting for it. Instead I have watched the Government sit on it for 2 years and now change it in ways that are essentially undemocratic. The Greens are left having to decide what to do with a curate’s egg. We do not wish to vote against the many sensible changes. We cannot vote for limited notification without a proper review process for notification decisions. We will be moving some amendments at the Committee stage and will abstain until we see whether those amendments are adopted.