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Central Government Guidance and the Resource Management Act - PP 05/02

Working within the RMA framework[8] – what is possible?

The primary tools available to central government for managing environmental policy decisions in New Zealand are in the RMA. These range from the general to the specific and can relate to specific decisions or general parameters.

Central government guidance is limited in part because the RMA purposely limits central control.

Those tools and their scope for changing outcomes are constrained by the fundamental design features of the RMA. The Act has a clear (though overlapping) set of principles and desired outcomes. It requires an integrated approach to planning and consent approval, avoiding ad-hoc or partial decisions and covering local planning issues as well as the environmental effects of an activity. Finally it delegates most decisions to local government and requires independence of decision-making where there is potential for a conflict of interest.

As a consequence of these features, the New Zealand system does not generally provide any scope at local or national level for overriding standard processes to either permit or prohibit a specific activity. Central government can “call-in” a decision but this only moves the decision to an independent body, rather than changing the criteria for the decision.

All decisions are subject to the criteria in the RMA and reviewable by the courts against those criteria. For example, independent commissioners recently decided against a street race in Auckland that was supported by the council. It could be argued that New Zealand has chosen to trade off the inability to make such specific interventions for the longer-term benefits of an integrated consensus on planning outcomes. Conversely the argument could be made that the outcome correctly reflected local preferences.

This of course assumes that such a consensus can be reached and that it has such benefits. The particular example cited may also simply reflect local variations rather than a fundamental problem – such a race does not need a resource consent in Wellington because the plan there already provides for such an event. In the Auckland case the commissioners had to apply the general provisions of the Act to a specific application within a plan that did not contain such a provision. This may have been deliberate or simply an oversight.

Central government’s options are limited to prescribing general outcomes or issuing decision-making guidance. .

A fundamental consequence of the lack of an intervention power in specific cases, however, is that central government can only intervene by either prescribing outcomes or refining the criteria to guide decision-making.[9]

The ability to prescribe outcomes is also inherently limited because of the costs of constraining activities through ex-ante evaluations, the information requirements of doing so and the practical limits of such techniques given variations in real world circumstances. A further problem is that prescribing outcomes in a lasting manner requires a degree of national or social consensus on what is to be achieved and how to do so. The lack of such a consensus is inherent in Part II of the RMA, which provides for the balancing of so many different outcomes. This is both easier and harder at the local level, in both cases because of being closer to the action.

The role of guidance

This leaves central government relying in most situations on issuing guidance. However, its ability to provide guidance in turn is limited (although to a lesser extent) by the same problems as the prescriptive solution. The development of guidance must therefore reflect the reasons why the RMA is structured as it is.

Guidance cannot ensure particular decisions are made. It can only be successfully developed where the issue in question is susceptible to clarification, and there is sufficient consensus on the nature of the problem and possible solutions. Even then there is a balance of risks around changing the status quo where the new approach must be applied by so many different parties at separate levels of government and then interpreted by the courts, with a substantial time lag before the results are apparent. A prudent central government will not rush to such solutions without a convincing case for net gains.

The above discussion does not completely exclude the potential for clarification of the RMA’s application by central government, but may help to explain why such guidance has been, and is likely to remain, relatively limited (beyond the basic issue of funding).

Guidance has its role but its limitations need to be recognised and expectations managed.

Ultimately, the issue may come down to how you make outcome-based (as opposed to prescriptive) regulation work, solving the problem that “regulations are born principled but die detailed” because of a lack of trust in how the regulation will be interpreted. There is a role for guidance but it can only achieve so much. Beyond that point, the answer might be not to “focus on trying to improve the clarity or precision of the rule or principle itself” but “building the capability of the community that has to interpret and apply it” ie, improve councils’ capability and access to information (Skidmore, Chapman and Miller 2003, p81-82). In reality a combined approach of better guidance and more capacity building may be the best available within the fundamental RMA framework. The current proposals for “improving the RMA” are consistent with such an approach.

Notes

  • [8]This refers to the current framework and that which would apply if the current amendment proposals go through. Those amendments aim to reduce some of the problems that have limited central guidance (eg, cumbersome procedures or the inability to require joint council processes) but do not change the fundamental constraints on central government’s role.
  • [9]This applies whether the intervention is through statute or regulation (including an NES), or by using NPSs to amend regional policies or plans.
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