Less work for lawyers under proposed RMA changes?

by Hannah Norton18 Mar 2015
The Government’s plans to overhaul to Resource Management Act (RMA) could see less work for lawyers in the long run.

The proposed reforms, expected to be drafted in a Bill sometime this year, have five broad categories – updating the purpose and principles; streamlining plan-making and standardising plans; increasing collaboration and reducing litigation; greater recognition of property rights; and stronger national consistency and direction.

When Environment Minister Dr Nick Smith outlined the proposed changes in January he described them as the “most significant overhaul of the Act since its inception 25 years ago”.

Anderson Lloyd partner and environmental law specialist Maree Baker-Galloway said the proposed reforms, once enacted, could bring an initial increase of work for lawyers – “the bedding-in phase”’; followed by a decrease, due to a reduction in litigation.

“In the short term there will be issues of interpretation that will need to be tested, because they will be important issues. But that will be just a transitional ‘blip’ of bedding-in.”

Once provision are tested and settled, the procedural changes should reduce the volume of work involved with plan-making, Baker-Galloway told NZLawyer.

“I don’t think you’d ever replace the volume of work that’s involved in litigating a plan in the old-fashioned sense with the volume of work that’s involved in collaborating with parties around the table at the start. The effect will be that there is less work for the legal fraternity in plan appeals and so on.”

However, she anticipated the proposed changes could create a different kind of work for lawyers, including assisting the collaborative solutions, “which is a role that lawyers have also had a productive and positive contribution to make in, in that ‘round-the-table’ context, because we are generally very good at problem-solving.”

But, she conceded: “Until we actually see the form of the bill, it is like shadow boxing.”

Brookfields partner and environmental law specialist Andrew Green agreed the reforms could result in a change in the type of legal work.

“The Minister has stated that the current process is too adversarial and the RMA needs to be re-engineered away from litigation toward collaboration. While he hasn’t detailed the form of this re-engineering, we expect a greater emphasis on up-front collaborative processes, possibly in combination with limited appeal rights. We also expect stronger direction around mediation and other forms of alternative dispute resolution prior to the use of Judge time.

 “On a whole, the reforms are unlikely to result in less work for lawyers, but perhaps a shift in the type of work. For example, greater involvement in policy processes and mediation, and less involvement in court proceedings,” he said.

He highlighted three key points about the proposed reforms that he felt lawyers needed to be aware of.

“First, the changes to Part 2 stand out as having the potential for the greatest impact on the operation of the RMA. Secondly, the greater recognition of property rights, which will heighten the risks for councils. Thirdly, standardised plans which will change the form and content of planning documents.”

The Minister’s target was to have the Bill drafted and introduced in the first half of this year, with referral to a select committee later in the year, and passage into law by the end of 2015 – but the outcome of the Northland by-election could change that.