Compensation Rules In Regulatory Standards Bill Deemed Unclear
That's the view of West Coast Regional Council deputy chair, Brett Cummings who cautions at the same time that the Bill has serious fish-hooks that could catch the council out.
The Bill could become law later this year if it sustains support from coalition partner National.
It proposes that no other law could take, use or impair the use of private property without consent, good justification or fair compensation.
That has been welcomed by farmers and others as a way to limit restrictions placed on land by the Council for environmental reasons or compensate the land owners.
But Te Uru Kahika, a network of specialist staff from the country's 16 regional and unitary Councils, says it is unclear if the Bill will apply to councils' regulation making, and if so, it has concerns about its workability.
'Parliament and councils would face unquantified costs each time they sought to regulate, rendering the legislative process unworkable,' Te Uru Kahika says in its submission on the Bill.
The WCRC's Resource Management Committee chaired by Cr Cummings scrutinised the submission at its meeting this month.
Chief executive Darryl Lew confirmed the proposed law was about Government directives such as National Policy Statements that require councils to identify SNAs and other overlays on people's properties.
'What they're saying as a principle, perhaps there should be a compensation package. That's as far as it goes and it's not very definitive from a whole of local government perspective because what does that mean for us and how does that work?' Mr Lew said.
WCRC chair Peter Haddock said the Bill aimed to improved legislation and proposed compensating businesses for any potential lost revenue as a result of regulation, which was is a good thing.
Cr Cummings said he approved of compensation in principle but was concerned that might backfire on the Council.
'When people are seeking consent to develop land, we start doing ecological reports and so on and while we go through this process, they're losing income from the farm.'
The West Coast would be potentially more affected than other regions and the council needed a lot more information, on how the rule would work, Cr Cummings said.
'Say a farmer up the valley wants to clear a bit of bush, and we hold him up (through regulation). Do we have to pay his costs for not having that paddock, and he couldn't graze 15 cows that year? If someone got the right lawyer under the new rules it could get quite embarrassing and quite expensive for us as a council.'
Mr Cummings told LDR his concerns were based on a recent case, when a farmer clearing scrub was initially given the green light after a site inspection by experienced WCRC staff.
But the decision was over-ruled by the council's senior resource consenting officer who lived in Dunedin.
'He spots a couple of puddles in the photos, decides it could be wetland and calls for an ecological report, and that's now costing the farmer $20,000. Who would pay for that under this new rule? '
The Regulatory Standards Bill has been strongly criticised for its focus on libertarian principles and property rights and Te Uru Kahika's submission echoes some of those concerns.
It appears that any 'impairment' of property in the public interest would attract compensation, however well-justified, it says.
'..the Bill risks setting an expectation that polluters may be due compensation for any environmental or public health intervention that impacted upon their bottom line. This would, in our view, be perverse. '
Where national regulations were not fit for purpose, the result was often costs for councils charged with implementing them and frustration for local ratepayers, businesses and communities, Te Uru Kahika said.
And frequent, rushed changes to legislation meant councils were having to redo work, at the ratepayers' expense.
'The National Policy Statement for Freshwater Management, for example, has been amended roughly every three years since it was introduced in 2011. It is under review once again.
'Amendments to the Resource Management Act are frequent — it was repealed, and then the replacement legislation was itself repealed for the RMA to be amended again while new replacement legislation is drafted.'
The Bill also failed to provide a cohesive and balanced approach to the public interest, Te Uru Kahika said.
'Public interest should encompass both collective value, for instance waterways that are suitable for swimming and intrinsic value, such as biodiversity …
'While individual property and freedoms are fundamental, they are not the only things that communities value.'
Te Uru Kahika is also unhappy at the absence of a Treaty clause in the Bill.
The WCRC has asked staff to investigate if a representative could speak in support of the Te Uru Kahika submission at the Select Committee hearings on the Bill, now underway at Parliament.
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