The RMA and New Zealand’s resilience

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By Clare Sinnott, Special Counsel, MinterEllisonRuddWatts
New Zealand is facing a range of resilience-related issues
The Resource Management Act (RMA) is facing a range of resilience-related issues:
– The vulnerability of primary industries and regional economies to climate change effects
– The risks to communities, transport and other systems from natural hazards, climate change and sea level rise, cyber-attacks, and accidental damage to vital infrastructure.
However we need to be clear what we mean by resilience – or it will just mean everything to everybody. If we use ‘resilience’ to mean the ability of a community or system to survive disruption and stresses, while maintaining essentially the same functions, it can be a useful lens for looking at issues. However, if what you want to achieve is some kind of transformation, then ‘resilience’ may not be the right word to use.

Three factors increase resilience
– Robustness – the ability of a community or system to resist stresses/change
– Responsiveness – our ability to respond or act quickly
– The existence of alternatives, options, redundancy and diversity

The last factor is important as we cannot assume that our next crisis will be the same as our last crisis. There is inherent uncertainty, and often we will not know what we need to do in order to be able to respond well to the next crisis that hits.

If we acknowledge uncertainty, the RMA can help us resist change and provide alternatives and redundancy

The RMA as it currently stands addresses robustness pretty well – we can seek to locate new infrastructure in sensible locations and we can deliberately design buildings and structures so they cope with change and shocks.
Similarly, there is nothing in the RMA that prevents us from pursuing proposals that would create alternatives, options, diversity or redundancy.

We just need to get comfortable about making decisions on the basis of uncertainty:
– If we cannot prove that a potential effect will definitely occur does not mean it should always be discounted
– If we cannot prove that we will definitely need to use a particular resource in the future does not mean that it is not valuable to retain the option of using it.

However there are two big issues that the RMA and related-legislation do not address – who pays the cost of the steps we take to increase resilience and how can we respond flexibly and quickly enough?

Who bears the costs?

The compensation provisions in the RMA are not helpful. Under section 85 RMA compensation is only payable to a landowner if a provision in a regional or district plan renders their land incapable of reasonable use.
However, the High Court has held (in Francks v Canterbury Regional Council) that if a plan zones your land to recognise it as inappropriate for particular types of development due to a natural hazard such as erosion or sea level rise, it is the hazard, (and not the plan provision) which prevents development and, therefore, no section 85 compensation is available.

Compensation is also unlikely to be available if a local authority decides to stop maintaining coastal protection or similar works. The High Court identified this as an issue as far back as 1995 and called then for the RMA to be revised to address the issue (Falkner & Others v Gisborne District Council & the Minister of Conservation).
If new or improved infrastructure or other measures are put in place to increase resilience what proportion of the costs should be borne by the public and what proportion by property owners who most directly benefit from it?
Local authorities’ current rating powers don’t provide much guidance and do not appear to be consistently applied.

Potentially there is a need for alternative funding mechanisms, such as a contribution based on the amount that the value of a person’s property is increased by the infrastructure or other measure – known as a ‘betterment levy’.
Does the RMA allow us to respond quickly enough?
Public participation is one of the cornerstones of the RMA, but one of the downsides of public participation is the time it takes for decisions to be made.
In absolute emergencies, such as the aftermath of a major earthquake, this is not really an issue as emergency powers and the option of special legislation are available.
However, what about the implementation of significant measures required to increase resilience that are not needed to avoid an immediate danger, but do need to be implemented reasonably promptly? One or two submitters on an application for RMA consent for such a proposal can cause significant delay, particularly given submitters’ rights of appeal.

Are there faster ways to address genuine concerns raised by submitters?

To create more flexible solutions the parties to RMA consenting processes can enter into side agreements either before or during the formal process. Those agreements enable approaches such as:

– agreement to consent conditions that could otherwise not be lawfully imposed; and
– agreements for the applicant to undertake works on a third parties’ land outside the boundary of a consent application.

Side agreements can be a pragmatic and reasonably fast method for addressing genuine concerns. However in most cases they are not transparent. Often side agreements are subject to confidentially clauses so neither RMA decision-makers nor other people involved in an RMA process can see what they say.
A transparent way to enable faster, and more flexible, settlement of third party concerns would be for the RMA to be amended to provide a mechanism for RMA applicants to enter into public, statutorily enforceable, agreements or undertakings.