Background and summary
Wide-sweeping reforms to the RMA are on the horizon, with the Local Government and Environment Select Committee having recently reported on the Resource Legislation Amendment Bill.
The Bill was introduced on 26 November 2015 (read more here). It covers matters left out of the 2009 Simplifying and Streamlining Act, and matters raised in the Ministry for the Environment discussion document released in 2013. Submissions on the Bill were heard from April to June 2016. In November 2016 the Maori Party lent its support to the Bill in exchange for policy concessions (read more here), allowing it to be referred back to the Select Committee for further consideration. While our the focus of this article is on the changes the Bill proposes to the RMA, the Bill also includes changes to the Crown Minerals Act 1991, the Reserves Act 1977, the Public Works Act 1981, the Conservation Act 1987 and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.
The Select Committee report recommends a suite of changes to the Bill. These include stronger provision for iwi involvement in resource management processes, a reduction of Ministerial regulation-making powers, changes to national planning standards (previously ‘national planning templates’), removal of mandatory strike-out powers from consent authorities, and deletion of provisions that narrowed the eligibility of “affected persons” to be notified in resource consent processes. However, many of the reforms – such as removal of appeal rights in some circumstances and deemed permitted activity status for certain activities – remain.
We consider the Select Committee’s recommended changes include some sensible improvements, and some matters of concern. We remain sceptical as to the extent the reforms will assist in addressing the Auckland housing crisis, despite being frequently cited as one of the Government’s key responses to the issue. Those reading the Select Committee’s report itself will note the stinging minority views by the Green Party, Labour and New Zealand First, revealing a divided Committee, and highlighting the contentious nature of many of the proposed reforms.
We summarise below several of the key provisions of the Bill and recommendations of the Committee.
Mana Whakahono a Rohe
The Committee recommends an entirely new section on iwi participation arrangements, no doubt a reason behind recent Maori Party support for the Bill. The Committee has recommended that an alternative iwi and local authority relationship arrangement be established, which will enable iwi to initiate participation arrangements, and will provide a broader scope for iwi involvement in resource management matters. These new arrangements will be known as ‘Mana Whakahono a Rohe’.
The stated purpose of the Mana Whakahono a Rohe arrangements is to provide participation opportunities for iwi, and to help local authorities to comply with their statutory duties under the RMA. The Committee has recommended a set of “guiding principles” (akin to Treaty principles) for developing and implementing a Mana Whakahono a Rohe arrangements (and for use as criteria in dispute resolution). It recommends that existing iwi/local authority relationships can be treated as Mana Whakahono a Rohe (by agreement in writing of all parties).
Mana Whakahono a Rohe arrangements are potentially very broad, and can cover planning processes, iwi consultation and notification (for both plan processes and resource consent applications), and may also specify “any arrangement relating to other functions, duties or powers under the Act.” Once established, Mana Whakahono a Rohe arrangements cannot be altered or terminated without the agreement of both parties.
It will be interesting to see whether in practice the arrangements enable more meaningful iwi involvement, and what implications they may have for planning processes and private interests in terms of time, cost and efficiency.
Notification of resource consent applications: limited notification
The Bill as notified proposed to introduce a new eligibility threshold for limited notification of resource consent applications, such that for most applications the only persons eligible for limited notification were owners and occupiers of adjacent properties. Persons meeting this requirement were still required to meet the “affected person” test. The Committee has recommended that for most applications, the Bill revert to the RMA’s s.95E “affected person” test for determining whether limited notification of resource consent applications is required. The only additional ‘eligibility’ requirements that have survived from the Bill as introduced relate to “boundary activities” and activities that may be prescribed in regulations.
The Committee recommends restricting the type of applications which are statutorily precluded from limited notification. As originally drafted, the Bill proposed that all controlled activities other than subdivision be precluded from limited notification. The Committee recommends this only apply to activities (excluding subdivision) classed as controlled in district plans. In our view, there is some logic in this approach.
The Committee also recommends deletion of the originally proposed provision that allowed consent authorities, when determining whether to notify a consent application, to disregard adverse effects if they are taken into account in the objectives and policies of the relevant plan. We consider that this is a positive change, as the provision as initially drafted would have inappropriately extended the permitted baseline.
Notification of resource consent applications: public notification
The Committee has recommended that the public notification provisions be entirely re-written. However the only substantive changes are that a consent authority must publicly notify an application that is made jointly with an application to exchange recreation reserve land under the Reserves Act 1977, and must not publicly notify an application for any controlled activity; any restricted discretionary or discretionary subdivision activity; any restricted discretionary, discretionary or non-complying boundary activity; or any activity prescribed by regulations made by the Minister.
It seems that a policy decision has been made that the benefits of not publicly notifying these types of applications is seen to outweigh the ability of third parties to be involved in decisions on them.
On a more practical note, the Committee has also recommended a more pragmatic approach to the level of detail required be contained in public notices, such that consent authorities should not have to specify relevant adverse effects in public notices.
Deemed permitted activities
Under the Bill as introduced, “boundary activities” where written approval is obtain from the neighbouring owners or occupiers on the infringed boundary could be deemed to be permitted activities. The Committee has recommended that the owner alone (and not an occupier) of neighbouring land can provide written approval. The Committee appears to be taking the view that a renter or lessee should not be able to provide an approval that impacts the value of the owner’s land. In practice, this may result in some changes to residential tenancy agreements.
The Bill as introduced also included a general discretion for consent authorities to deem activities to be permitted where an activity would be permitted except for “a marginal or temporary non-compliance”, and has less than minor adverse effects that are no different in character, intensity or scale than they would be in the absence of that non-compliance. The Committee has recommended that this provision be retained, but that such a deemed permitted activity status now lapse five years after notice of the deemed permitted activity status is given, if not given effect to.
While the policy intent behind this provision is sensible, many details of this new process remain unclear – including, for example, whether (and how) such a decision can be challenged. Whether particular activities meet the relatively subjective criteria for deemed permitted activities will likely be the subject of ongoing debate.
The Bill as introduced contained provision for a “fast-track” process for straight-forward resource consent applications, for which a decision on notification (or if non-notified, the substantive decision itself) must occur within 10 working days of filing an application. The Committee has recommended retention of this process, but that it be available in more limited circumstances, being only where the activity is a controlled activity for a land-use consent under a district plan.
An application ceases to be a fast-track application if it is notified on a public or limited basis, if a hearing is held, or if the applicant opts-out of the fast-track process (with the latter being a recommended addition by the Committee). The Committee has recommended that the Governor-General (on recommendation by the Minister) may make regulations prescribing additional information that must be included in fast-track resource consent applications.
We understand the policy motivation behind this new process is to reduce unnecessary bureaucratic delays with more straightforward resource consent applications. Currently, a non-notified application that does not go to hearing must have a decision issued within 20 working days (s.115(3)). Given the various local authority processes that must occur prior to issue of a substantive decision, we do not consider this timeframe unreasonable. Moreover, we are concerned that the fast-track application process has the potential to compromise the quality of decisions, or lead to the consent authority opting to notify applications in order to buy time.
In our view, there can be numerous reasons and statutory mechanisms behind resource consent processing delays, such as funding and human resourcing issues. In any event, the Bill does not affect the consent authority’s ability to extend any time period up to twice its original length (ss.37-37A) and to ‘stop the clock’ to accommodate a further information request or the commissioning of a report under s92 (s.88C).
Submissions may be struck out
The Committee has recommended deleting provisions providing for the mandatory strike-out of submissions on resource consents by consent authorities. It has instead recommended that strike-out of submissions (or part of submissions) be discretionary, and only available where the consent authority is satisfied that the submission:
- is frivolous or vexatious;
- discloses no reasonable or relevant case;
- would be an abuse of the hearing process;
- contains offensive language; or
- is supported by evidence that purports to be expert evidence but has been prepared by a person who is not independent, or does not have sufficient specialised knowledge or skill to give expert evidence on the matter.
Interestingly (and potentially of concern), consent authorities can exercise this discretion even after a hearing has taken place.
This new discretion represents a new tool available to consent authorities, although time will tell how often it is utilised in practice. We imagine that consent authorities are likely to be reluctant to strike out submissions, except in very clear situations. Rather, we expect that, as presently occurs, decision makers will give submissions the appropriate weight when deliberating.
Statutory recognition of offsetting
The Committee recommended that s.104(1) be amended to require consent authorities to “have regard to any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity.” This would statutorily encapsulate consideration of offsetting under s.104.
Offsetting is a complex and fraught area of the law. The proposed changes may provide some additional certainty in this area.
Rights of appeal
Concerningly, the Committee has generally confirmed the Bill as drafted in that there be no right of appeal under s.120 against decisions by consent authorities relating to boundary activities, subdivisions and residential activities. This is even the case for the applicant, which is odd and surprising. The Committee has made a minor recommendation that appeal rights be available for these activities only where the application has non-complying status.
Any removal of appeal rights risks limiting public participation and removing a valuable check on decision-making. The Committee noted that judicial review remains available to address process errors, but in reality the cost and procedural requirements of that process will be prohibitive for many parties. We consider that the Committee’s emphasis on ensuring certainty and finality of consent authority decisions is misplaced. It is also doubtful whether the reduction on appeal rights will achieve the cited aim of encouraging involvement in policy decisions at the planning stage.
Ministerial regulation-making powers
The Committee has recommended that many of the Ministerial regulation-making powers in the Bill as introduced be deleted, including the powers to permit a specified land use; to prohibit a local authority from making specified rules; and to specify rules that are overridden by regulations and must be withdrawn (to name a few). This followed concerns about whether there was a need for such powers, how such powers would fit within the existing resource management system, the lack of opportunity for public comment, and the impact of such powers on local decision-making processes. The Committee went so far as to describe these provisions as “unconstitutional”.
The Bill now includes regulation-making powers allowing the Minister to prescribe certain activities and classes of activities:
· that are suitable for the fast-track resource consent process;
· in respect of which public or limited notification is precluded; and
· in respect of which “affected persons” may be limited for the purposes of limited notification.
It also includes a general regulation-making power to prohibit or remove specified rules or types of rules that would duplicate or overlap with subject matter included in other legislation.
Streamlined and collaborative planning process
The Bill as introduced included a new streamlined planning process, which aims to provide greater flexibility in terms of processes and timeframes in order to allow the plan-making process to be tailored to local issues and contexts. The particulars of a streamlined planning process will be individually set by the Minister when issuing a direction that the streamlined planning process be used. Broadly, the process enables preparation of a planning document in certain circumstances without following all of the provisions of Schedule 1.
The Committee has recommended that local authorities must obtain the agreement of a person seeking a private plan change before it applies to the Minister for a direction to use the streamlined planning process. The Committee also recommends that the local authority give public notice of any application to the Minister for such a direction.
The Bill also introduces a collaborative process, which aims to promote increased front-end public engagement, to produce plans that more accurately reflect community values. A collaborative planning process involves a group of persons being appointed by a local authority for the purpose of assisting the authority to prepare or change a proposed policy statement or plan. No substantial changes are proposed by the Committee to this process, although the Committee recommends that the Minister’s otherwise unqualified discretion to approve early use of the collaborative planning process be watered down.
National planning standards
The Committee recommends that the ‘national planning templates’ be re-named ‘national planning standards’, to clarify confusion caused by the word ‘template’ (which suggested a pattern or model). The purpose of national planning standards remains to set the parameters for regional policy statements and plans, and support implementation of broader national policy direction through policy documents and regulations made under the RMA.
Specifically, the Committee recommends that national planning standards may now direct local authorities to use a particular form and structure for regional policy statements and plans, to include specified provisions in their policy statements and plans, and choose from a number of specific provisions to be included in their policy statements and plans.
The Committee has recommended new provisions requiring the first set of national planning standards to be approved not later than two years after the empowering provision comes into force, and setting out the minimum requirements for that first set of national planning standards. Once established, the national planning standards may require local authorities to amend their planning documents to include specific provisions or ensure consistency with the national planning standards, without following the usual Schedule 1 processes, and within the timeframe specified in the national planning standards. If no timeframe is specified, local authorities must amend their relevant documents within one year of approval of the national planning standard being notified in the Gazette.
Limited notification of plan changes
The Committee has recommended retention of limited notification of “minor” plan changes as proposed in the original Bill, despite concerns raised by submitters around the difficulties of identifying affected parties and any adverse effects on the environment. We consider this to be a sensible addition, as in practice some minor plan changes have a similar or lesser impact than resource consent applications, and do not warrant public notification.
National Environmental Standards
The Committee has recommended changes to allow national environmental standards to:
- include non-technical methods or requirements;
- classify certain activities as permitted (relating to hazardous substances);
- specify the duration of consents as a consent condition (and in particular specify a duration period of fewer than 20 years for aquaculture activities);
- provide more detail about when a more lenient rule, consent or bylaw would prevail over a national environmental standard; and
- require local authorities to review land use consents.
The Bill is coming before Parliament for its third reading in the week of 3 April 2017, and could be passed into law as early as April or May. For more information or assistance, please contact Jason Welsh or Chris Simmons.
 “Boundary activity” is defined in the Bill as an activity “require[ing] a resource consent because of the application of 1 or more boundary rules, but no other district rules, to the activity, and no infringed boundary is a public boundary”. “Boundary rules” include height in relation to boundary, rules relating to sunlight, yard setbacks, and any other rule relating to property boundaries.