The Resource Legislation Amendment Bill, introduced to Parliament late last year, represents the long-awaited second phase of the Government’s resource management reforms, initiated in 2008. The Bill comprises more than 40 proposals aimed at overhauling the RMA and delivering “substantive, system-wide improvements to the resource management system”.
Many of the Bill’s proposals are sensible changes that will likely assist in making processes simpler and less costly. For example, proposed changes enabling the electronic service/filing of documents are sensible. However, some proposals - while playing on the Government’s catchphrases around “streamlining” and “reducing costs and bureaucracy” - may struggle to achieve substantive improvements in practice.
Despite the Government’s labeling of the reforms as an “overhaul” of the resource management system, it acknowledges that the Bill is a compromise. Gone are the much-flaunted Part 2 recommendations of the Technical Advisory Group. Given the Maori Party’s tenuous and hard-won support for the Bill, it is not quite the “bluegreen” whitewash that it might have been if the Government could have pushed the reforms through unfettered. Despite that, the blue certainly does appear to dominate the green, with many of the Bill’s reforms favouring business and development.
Key themes include:
- requiring fewer resource consent applications;
- reducing notification requirements;
- quicker processing of certain consent applications;
- reducing opportunities to submit on consent applications;
- limiting appeals and reducing the Environment Court’s role;
- change to Part 2 to introduce consideration of natural hazards;
- increasing options for plan-making processes; and
- increasing national direction and centralising decision making/control (particularly through ministerial regulations).
This article outlines some of the key proposals.
The Bill contains a number of proposals intended to reduce consenting timeframes and costs.
Proposed changes include the following:
- Introduction of a new “fast-track” category of resource consent application. The Bill proposes that certain types of application be deemed to be “fast-track”. For those applications, a decision on notification occurs within 10 (rather than 20) working days after lodgement. If a fast-track application is not notified, notice of the decision on the application is also required to be given within 10 days of lodgement. Fast-track applications would include:
- any controlled activity (other than subdivision of land); and
- any activity specified by regulation.
- Certain activities deemed permitted. A “boundary activity” - which is defined in the Bill and includes, for example, a height in relation to boundary infringement - is proposed to be deemed as a permitted activity (i.e. no resource consent application is required for such an activity). This is where written approval has been obtained from each owner/occupier of affected properties. Outside this limited scenario, the Bill also provides discretion for a consent authority to decide that other activities be deemed permitted. This would apply to an activity that would be permitted except for “a marginal or temporary non-compliance” and which has adverse effects no different in character, intensity or scale than they would be in the absence of that non-compliance, and which has less than minor adverse effects.
- Changes to notification provisions. Proposed amendments to the notification provisions of the RMA introduce some very significant changes clearly intended to reduce the number of applications and would-be submitters being notified. In addition to some process clarifications to the current notification rules, key changes are:
Controlled activities; certain categories of restricted-discretionary and fully discretionary activities – for a “boundary activity”, a subdivision, or a “residential activity”; and activities prescribed by regulation must not be publicly notified except where “special circumstances” exist.
When determining the level of effects of an application, a consent authority may disregard an adverse effect if “it is already taken into account by the objectives and policies” of the relevant plan.
Controlled activities (other than subdivision), and activities prescribed by regulation must not be limited notified, unless “special circumstances” exist, or where certain limited exceptions are met.
Introduction of an “eligibility” requirement, whereby only “eligible persons” may be considered an affected person for the purposes of limited notification. Importantly, for most applications (excluding non-complying applications) the only “eligible persons” are owners and occupiers of adjacent allotments. Eligible persons must also meet the test for being an “affected person” (i.e. that effects on them are minor or more than minor, but not less than minor) in order to be given limited notification.
Conversely, the proposed notification provisions introduce additional requirements to notify particular iwi interests.
- Ability to strike out submissions. The Bill sets out situations where a consent authority may direct that a submission, or part of a submission, be struck out. These are where it is frivolous or vexatious; discloses no reasonable/relevant case; or would lead to an abuse of process. The Bill also sets out situations where a submission must be struck out, being where it has no sufficient factual basis; is not supported by evidence; is supported only by evidence that purports to be independent expert evidence but which is prepared by someone who is not independent or a suitably qualified expert; or where it is unrelated to adverse effects. A direction to strike out a submission may be made before, at or after the hearing.
- Limitation on appeal rights. The Bill seeks to limit appeals as follows:
- No right to appeal against decisions relating to resource consents for:
- "boundary activities";
- subdivision, except for non-complying activities; and
- certain "residential activities".
- A submitter on a consent application may only appeal "in respect of a provision of matter raised in the person's submission". This excludes any part of the submission which is struck out.
- A submitter on a consent application may only appeal "in respect of a provision or matter raised in the person's submission". This excludes any part of the submission which is struck out.
- No right to appeal against decisions relating to resource consents for:
- Including the management of significant risks from natural hazards" as a new matter of national importance in section 6 of the RMA.
The Bill proposes a suite of changes aimed at providing for more “efficient, flexible and proportionate” planning processes, including the following:
- New “streamlined” and “collaborative” planning processes. The Bill introduces two new planning tracks as options for councils:
The streamlined option 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 collaborative process, based on the work of the Land and Water forum, aims to promote increased front-end public engagement, to produce plans that more accurately reflect community values. The idea is that this will reduce litigation costs and delays.
- Increased national direction: A key feature of the Bill is stronger national direction. Numerous changes are proposed in order to provide more effective central guidance to councils, including the following:
Enabling the development of a national planning template, aimed at improving the consistency and user-friendliness of plans and policy statements (the template will be able to require councils to adopt certain form and content requirements).
Strengthening/broadening the powers of National Policy Statements (“NPS”) and National Environmental Standards (“NES”). Proposed changes also aim to reduce the time taken to develop them.
Introducing a new Ministerial regulation-making power to permit certain uses of land (in order to avoid unreasonable restrictions on land); and to prohibit/remove certain council planning rules that duplicate or purport to override other legislation, or impose unreasonable restrictions on residential development. A range of other regulation-making powers, including in relation to the consenting regime, are also proposed.
Introducing provisions in the Exclusive Economic Zone (“EEZ”) Act enabling the Government to provide national direction for decisions on marine consent applications. Other changes to the EEZ Act include the alignment of processes with the RMA, providing for the decommissioning of structures, and amendments to transitional and enforcement provisions.
Making it a function of councils to ensure sufficient residential and business development capacity to meet long-term demand.
Changes to current processes: The Bill proposes a number of amendments to current plan processes, including introducing the possibility for limited notification of council plan changes (at present, plan changes must be publicly notified).
More consistent iwi engagement: The Bill also proposes requiring councils to invite iwi to form an iwi participation arrangement establishing the expectations for consultation on plan development.
The Bill is before the Local Government and Environment Select Committee. Submissions close on 14 March 2016.