Appendix 2 - Some concrete examples of burdensome regulation
Each of these examples is presented as the Taskforce received them. We have not made an independent attempt to verify the accuracy of the accounts, and include them here not as definitive, but as illustrative of the widespread sense that the regulatory system in New Zealand, by design or implementation, is unnecessarily impeding economic activity in New Zealand.
Resource Management Act and/or local government
“Drawn-out battle to axe palm pest”
How many people does it take to chop a dangerous palm tree and a poisonous leaf shrub on a community reserve?
Yesterday, three Takapuna hearings commissioners took half a day to consider an application by the city council's parks department to remove a phoenix palm and an oleander tree from the Castor Bay Beach reserve. They gave consent, on condition the trees be replaced by more benign species.
They had first considered a report on the application under the Resource Management Act by land use consents planner Suzanne Murray, who recommended consent be granted. Her recommendation had been reviewed by the council's team leader land use consents and approved by the council's operations and resource management group manager.
Ms Murray's report was partly based on information from specialist assessments by the council's central ward environment services arborist, Gavin Donaldson, who supported the application, which had been prepared by Andre Le Claire, the council's parks arborist. Mr Donaldson had his report “peer reviewed” by a different land use consents planner to Ms Murray. Arborist Mr Le Claire's report was reviewed by the parks operations manager and approved by the parks liaison manager….
Yesterday, the Takapuna commissioners …. agreed to the trees' removal.
However, this was not their first try at dealing with the application. When the proposal was first brought before them, in November, they decided that a meeting on site at the park, with 20 residents, in September 2008, was not adequate public consultation. They ordered the proposal be debated with the community, including obtaining the views of the Takapuna Community Board and the Castor Bay Association.
The community board voted to give its consent, as land owner, for removal. The proposal was again taken to the Takapuna commissioners in May (2009), when the decision was taken to notify, or fully advertise, the proposal. The reason was that consultation had not resulted in a consensus of support within the neighbourhood. Notification of the proposal resulted in written submission from 13 parties.
From nzherald.co.nz, 8 September 2009
791-793 Great South Road, Penrose
This site was purchased around 1990 by Andrew Hastings. He spent 14 years trying to gain consents to develop the site. In 2002, he won a case in the Environment Court relating to the zoning of the land. The decision confirmed that it was appropriate that the land be zoned Business 6, and set aside the wishes of the Auckland City Council, which wanted to rezone the land as Open Space 1. In 2004, Mr Hastings passed away unexpectedly and, on the basis of the Environment Court's decision, the TR Group purchased the site. We have since spent a further five frustrating years trying to gain consents to develop the site.
From the day we purchased the land, we set about creating a practical outcome for it. This involved countless efforts to engage with Auckland City Council, Auckland Regional Council, Department of Conservation and other interested or affected parties. What became very clear is that no one wanted to engage with us in a meaningful way.
For example, we put a proposal to DOC in November 2008. They undertook to respond to this in February 2009. By March no response had been received. They would not return calls. Eventually we were contacted by their lawyer saying that they were not going to respond and would prefer the consent ended up in a hearing or Court case so they could attend and make their statements there. In May, the Minister of Conservation forced them to engage with us. During this meeting and subsequent discussions, they stated that our proposal “was neutral, in a worst case scenario, from an ecological point of view, however we generally prefer not to engage with land owners and would like to hear what others think in a hearing situation.” Notwithstanding this, and under pressure from the Minister, they undertook to respond to our proposals within two weeks. Six weeks later a request for more information was received from them and it became clear that they were simply going to stall until the hearing date rather than provide a genuine response.
During the hearing, which lasted for four days, there were approximately 20 people present at all times, including six Commissioners, a meeting organiser, and three people from each of the Auckland City Council and Auckland Regional Council.
The fee from ARC alone for processing the Resource Consent application is $91,000 plus GST. The fee from the Auckland City Council is $45,000. We have estimated the cost of the hearing to be $180,000. The total cost to us, of professional fees, since purchasing the land is approximately $600,000. This does not factor in anything for lost opportunity or cost of funds committed (land was purchased for $4 million in May 2004).
At the hearing, people representing the ARC and ACC made submissions to Commissioners (also representing the ARC and ACC). These people read statements up to 50 pages long expressing their opinions on the land. These are the same people that we had been trying to engage with over the last five years, but they were not willing to do so. They work within a system, to processes, that have long since lost sight of practical, balanced and productive outcomes.
For people from the private sector, this process is incredible. To see, in public, an organisation pitching a case to itself is very odd. To endure four days of documents being read out when they could have been distributed prior to the hearing is unusual… It is beyond us why each organisation could not gather a group of appropriate people together and meet with us, the client, to resolve an outcome well before a hearing is needed.
There are obvious problems and shortcomings within these organisations. However, it is the knock-on effect they have on the rest of New Zealand industry and society where the real damage is done. Productivity loss and damage to New Zealand's morale is the multiplier effect. How many people simply don't even try to start something because they know it will be too hard?
From a submission by the TR Group dated 15 October 2009
In a subsequent email in early November, TR Group's CEO advised that a decision had been reached, with the Auckland City Council granting its consent to the company's application but with the Auckland Regional Council declining consent “on every matter requested… We are now preparing an appeal to the Environment Court and allowing for a further 12 months for this to play out (plus significant cost also). It is hard to know what to make of all this - regardless of the final answer, the methods and style adopted by ARC are nothing short of ridiculous. There is no intent to find balanced outcomes from ARC, no intent to engage constructively, and every intent to utilize the costs and mechanisms of the system to prevent progress. We can't even find anyone there to engage with…”
Even government agencies frequently stymied by the RMA
When I joined Transit New Zealand in 2000 as Regional Manager, I was immediately struck with the challenge of accelerating large roading projects in order to respond to increasing allocation of transport funding. At that time, I discovered that it took four years to take regional projects through RMA processes and only three years to construct them… It is important to record that the four years involved in getting through RMA processes was often not the fault of the legislation but of the way professionals in various consenting agencies interpreted the RMA… So I don't blame legislation but I am critical of the way some professionals seek to apply it.
Email from Wayne McDonald, NZ Transport Agency, dated 6 November 2009
Birds' nest shells not PC say Maori
Culturally unacceptable sand scuttled a beach project and now culturally unacceptable shells threaten to delay nesting beds for dotterels already holding up a major motorway. A Maori group says shells from Thames for eight rare dotterels, which have delayed building the $32 million Esmonde Rd motorway interchange project, aren't acceptable.
The nesting beds to keep the rate birds happy are expected to cost about $200,000. Ngati Whatua representatives are unhappy over mixing local and outside shells, and want them sourced locally…
From “North Shore Times Advertiser”, 27 February 2003
Ernslaw One's “trial by RMA”
A few years ago, NZ forestry company Ernslaw One gained a resource consent from Environment Waikato and the Thames Coromandel District Council to build a state-of-the-art sawmill in the centre of Whangapoua forest on the Coromandel - on an out of the way 10 hectare grass paddock up a dirt road about six kilometres back from Whangapoua Harbour, on a run-down marginal farm purchased for the project, and adjacent to the stock-grazed, wooly-nightshade infested, banks of the Opitonui River.
NZ's well know “NIMBY” phenomenon saw a local environment protection society quickly formed to oppose the sawmill project. The group argued that all those in the area who wanted jobs already had work, that new timber workers would be unwelcome (despite the area then being a WINZ job-short no-go area and the proposed sawmill being high-tech and requiring a small workforce of computer savvy technicians to drive it). The opposition group immediately appealed the sawmill's consents to the Environment Court with assistance from the Ministry for the Environment's Legal Defence Fund.
While the Environment Court found that almost all of the sawmill's effects on the surrounding physical environment (air, land and water - including the Whangapoua harbour) would be truly minor, given the various mitigating measures proposed by Ernslaw One and the consent conditions set by the Councils, the Environment Court was persuaded to reject the project's land use consent by arguments on rural landscape and pleasantness, and the fact that the adjacent river bank was a place where people might like to picnic, despite the fact they never have and probably never will do.
The whole RMA process was a huge drain on the company, and the outcome exceedingly disappointing (Ernslaw One had imported all the machine centres and other hardware for the proposed sawmill from Scandinavia).
One of the many perverse twists in the saga was that the Department of Conservation appealed the positive decision of the Council's four independent Hearing Commissioners, despite the fact one Commissioner was appointed by DoC itself! DoC's ability to use the resources of the Crown to oppose a project promoted under the (Government's) Wood Processing Strategy indicates how the wires have become crossed in Government thinking and process.
In today's environment, investors in wood processing are increasingly likely to head across the Tasman or further afield. At the time of the court appeal, there were 22 sawmills under development in Australia (then NZ's largest market for sawn timber), which have now provided the Lucky Country with the equivalent capacity in sawn timber to what it was importing in 2005. An Australasian forest industry magazine at the time reported that the decision was a “Shocker” and that New Zealand was closed for business.
From an email from Mr Peter Weir dated 5 November 2009
