Will reform of the Resource Management Act and a brand new Future Generations Act put an end to wind farm Nimbyism? Farah Hancock looks at proposed reform and how one court case may have played out differently under a new regime.
When Environment Minister David Parker announced the Resource Management Act was on the chopping block, there wasn’t much sympathy.
Heralded as groundbreaking at its inception, it’s had a slow fall from grace. As Parker pointed out, the 801-page doorstop of an Act has the dubious honour of simultaneously presiding over a housing and freshwater crisis.
The Act, which is supposed to protect New Zealand’s environment as we build our homes, businesses, amenities and infrastructure has been described as underperforming and unwieldy.
While the government process of reform is in its early stages, the Environmental Defence Society (EDS) has been looking at what reform might look like for the past three years. Parker cited the society’s review when discussing the need for a “thorough overhaul” of the law.
Their final report has just been released, with Parker himself doing the launching honours.
Commonly, adjustments to the Act have been referred to as tinkering around the edges. The society’s report is less tinkering and more extreme makeover. It’s not just the RMA that gets an overhaul, but New Zealand’s entire legislative and institutional framework.
Some of the suggested changes in the Environmental Defence Society report include:
– Rewriting the purposes and principles of the RMA
– Establishing environmental targets
– The creation of a Future Generations Act as an overarching, strategic legislation
– The creation of a Futures Commission
– The creation of an Oceans Act
– The creation of a central government National Environment Plan
– A greater role for the Environmental Protection Authority
– The establishment of an Environmental Defender’s office to undertake public interest litigation
– Strengthened Water Conservation Orders and the introduction of others such as a Heritage Area Order
– An improved Wildlife Act
– Integrating the Local Government Act, Land Transport Management Act, and other infrastructure-focused legislation into a single Local Government and Infrastructure Act
What will it mean?
Shuffling acts and polishing legislation is all well and good, but how will the changes play out?
Would a Heritage Area Order meant Foulden Maar could never be at risk of being ground up for pig food? Would an improved Wildlife Act which included the Department of Conservation’s top 150 species for saving have made a difference to the enormous dairy conversion in the Eyrewell beetle’s home? Will there be be better rules to prevent a farmer clearing endangered Muehlenbeckia astonii shrubs on Kaitorete Spit for pasture?
Or, will the changes help pave the way to achieve the 100 percent renewable energy target and balance Nimbyism with wind farms?
In an attempt to look at how the proposed changes would play out in a real life situation, Newsroom spoke with Bell Gully partner and specialist in environmental and resource management law Natasha Garvan about how the outcome of a previous court decision would be different under the proposed rules.
A case study: The court case of commercial wind farms in Porirua
Porirua might be windy, but good luck trying to build a commercial wind farm there.
Despite the city council declaring a climate emergency, its existing plan rules make the likelihood of establishing a renewable energy wind farm incredibly difficult. If turbines are within 700m of a boundary it’s classed as non-complying.
The argument over the introduction of the 700m boundary setback into the council’s district plan went to the Environment Court in 2012. Mighty River Power and the NZ Wind Energy Association lost their case against Porirua City Council.
“Basically, it’s raising the bar and making it very difficult to receive resource consent for a wind farm in Porirua,” said Garvan.
Garvan was not involved in this case, but has worked on other cases involving wind farms.
“In all of those cases it’s accepted that the effects are experienced largely at people’s houses rather than property boundaries.”
In rural areas, houses are often a considerable distance from property boundaries.
Following the court decision, Garvan was aware of other councils considering similar measures to Porirua. Another case for the Blueskin small-scale community wind farm close to Dunedin was lost in 2017.
“We’re going to need to reform the system if we’re going to get different outcomes.”
So, how would the reforms proposed by the Environmental Defence Society have changed the outcome in Porirua?
Garvan expected the proposed Future Generations Act would have come into play.
“That’s proposed to set the strategic planning for climate change and influence all the other frameworks including the new RMA.”
She thinks this may mean a stronger emphasis on renewable energy and stronger national direction to councils to consider this when writing their local plans.
There’s a potential the proposed rewrite of the RMA’s principles would also include more support for renewable energy as part of fostering resilience to climate change.
If the proposed changes were in effect now, would the court case decision between wind energy and Porirua City Council be different?
“Yes, I think so.”
The Government’s proposal for RMA reform is due mid 2020.