Resource Legislation Amendment Bill

Litigation Update

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The Resource Legislation Amendment Bill (Bill) was introduced into the House on 26 November 2015. The introduction of the Bill actions the long awaited next stage of the Resource Management Act 1991 (RMA) reforms. The reforms have been signalled for some time by the Government. As a result, many of the amendments proposed were expected by the resource management community.

This update summarises some of the more substantive changes within the Bill without addressing the detail of the drafting. The Bill proposes a number of changes which we have summarised under the following broad headings: 

  • Resource consents 
  • Plan change processes 
  • Part 2 
  • National Direction 
  • Other legislation to be amended 

We discuss each of these topics below.

Resource consents 

The Bill introduces a number of changes to the resource consent process, including: 

  • A new fast-track process 
  • Streamlined notification process 
  • Offsetting adverse effects 
  • Changes to conditions 
  • Changes to administrative fees and charges 
  • New deemed permitted activities 
  • Limits on appeal rights 
These changes are outlined below. 

Fast-track applications 

The Bill includes a new fast-track process for assessing resource consents (clauses 121 and 125 of the Bill). An application will be fast-tracked if: 

  • The application is for a controlled activity (other than a subdivision of land), or 
  • The application complies with Regulations made to identify fast-track applications. 
Regulations may also specify what information is required to be submitted with an application. 

Once an application is fast-tracked the Council will have 10 working days to determine whether to give public or limited notification (currently, a decision on notification needs to be made within 20 working days). An application will cease to be fast-tracked if it is given public or limited notification. 

Streamlined notification process 

The notification processes for resource consent applications will be streamlined. In part, this is to accommodate the notification of 'fast-tracked' applications. It is also intended to reduce the re-litigation of policy decisions (made through the plan development process) at the resource consent stage. That will be achieved by new limits on public and limited notification, with a corresponding reduction in the number of people who can appeal a first instance decision to the Environment Court. 

The changes will be brought into effect through significant amendments of sections 95, 95A, 95B and 95E. Sections 95C, 95D, 95F and 95G will remain broadly in their current form (with some minor tweaks), but will be supplemented by new section 95DA. A new ' step-by-step ' approach is taken to the drafting of the key notification provisions. This establishes a mandatory decision-making sequence that consent authorities must follow. This is likely to require some adjustment of existing processes and information technology systems. 

The main changes to the notification provisions are outlined below. 

Timeframes 

Amended section 95 preserves the 20 working day timeframe for deciding whether to give public or limited notification of an application. However, as outlined above, the timeframe is reduced to 10 working days for a 'fast-tracked' application. Note that a 'fast-tracked' application will be converted into a regular application if a decision is made to notify it (new section 87AAC(2)(a)). 

Public notification 

The main changes regarding public notification are: 

  • New section 2AB will allow the details of a public notice to be published online, with only a 'short summary' of the notice required in physical newspapers
  • The base discretion to publicly notify an application in section 95A(1) is removed
  • Public notification is precluded in relation to applications for certain activities (unless special circumstances exist): controlled activities; boundary activities, subdivisions, or residential activities that are restricted discretionary or discretionary; and activities prescribed in Regulations. National Environmental Standards and rules can also preclude public notification
  • If an application is publicly notified, the notice must specify the relevant effects (or special circumstances) that justified the decision. 
  • The effects threshold for public notification is unchanged: adverse effects on the environment that are more than minor (new section 95A(8)(b)). However, a new matter can be taken into account in order to exclude potentially relevant adverse effects: namely an effect that 'considered in the context of the relevant plan or proposed plan, is already taken into account by the objectives and policies of that plan' (new section 95D(ca)). 
Limited notification 

The main changes regarding limited notification are: 

  • Limited notification of certain persons is mandatory: affected protected customary rights groups; affected customary marine title groups; and affected persons with a relevant statutory acknowledgement. 
  • Limited notification is precluded in relation to applications for certain activities (unless special circumstances exist): controlled activities other than subdivision; and activities prescribed in Regulations. National Environmental Standards and rules can also preclude limited notification. 
  • Special consideration (although not mandatory for limited notification) must be given to persons granted a nohoanga, overlay classification, or vest and vesting back instrument (all defined terms); and iwi to whom a site is a recognised wāhi tapu. 
  • A new criterion is established: eligibility to be considered an affected person. A person must be eligible before they can be considered to be affected under section 95E. Eligibility is determined by new section 95DA: 
    • Only selected persons can be eligible in relation to: boundary activities (the owner/occupier of an allotment with an affected boundary); activities on land that is the subject of a designation (the relevant requiring authority); and subdivisions (various public bodies and infrastructure providers). The limits do not apply to non-complying activities on land that is the subject of a designation or non-complying subdivisions. 
    • Any person can be eligible in relation to an activity that 'may be granted only by a regional council' (unless it is also an activity prescribed in Regulations). 
    • Otherwise, only owners/occupiers of 'adjacent' land and certain infrastructure owners can be eligible. 
  • Once eligibility is determined, the test for determining whether a person is affected by a proposal is broadly unchanged: in other words, are the effects on the person minor or more than minor (but not less than minor). As for public notification, the categories of adverse effects that may be disregarded are increased with a reference to those already taken into account by objectives and policies. 
  • The consent authority must record the effects that are the basis for its decision that a person is an affected person. 
Regulation making powers 

The proposed notification provisions are seeded throughout with references to types of activity that may be prescribed in Regulations. This links to potentially far-reaching regulation-making powers in new section 360G, which can be used to significantly extend the range of matters over which discretion to notify is excluded. 

Offsetting adverse effects - mandatory consideration 

The Bill introduces a requirement to consider adverse effects that are offset by positive effects when determining a resource consent application. As part of the balancing exercise under section 104, a consent authority will have to have regard to any measure proposed by the applicant for the purpose of ensuring positive effects on the environment to offset any adverse effects on the environment that will, or may, result from allowing the activity. 

Conditions 

New restrictions on conditions of consent are proposed through new section 108AA. The Bill prescribes that a consent authority can only include a condition on resource consent if: 

  • The condition has a direct connection to the adverse effects of the activity on the environment
  • The condition has a direct connection to an applicable district rule or a regional rule, or 
  • If the applicant agrees. 
This new requirement on conditions appears to differ slightly from the current case law approach. 

Administrative fees and charges 

There are sweeping changes proposed to the administrative charges regime currently set out in section 36. Local authorities will be empowered to charge for three additional matters: 

  • The costs of monitoring a permitted activity
  • The costs of deciding whether an activity is a permitted activity
  • A hearing commissioner's costs for hearing an objection. 
In addition, consent authorities may fix fees payable to a hearing commissioner. However, a consent authority must fix a fee or a charge under section 36, or in respect of fees payable to a hearing commissioner, if required to do so by Regulations. 

Regulations will not fix or prescribe the amount that a consent authority can charge. The purpose of Regulations is instead to make it mandatory for consent authorities to fix a fee or charge using the process in the RMA. 

Deemed permitted activities 

The Bill allows for activities meeting certain requirements to be permitted activities (essentially waiving the requirement for a resource consent) in two situations (clause 122): 

  • Option 1 — where the activity is a 'boundary activity' that is approved by neighbours on affected boundaries. Specific information must be provided with the boundary activity in order to meet the requirements of becoming a permitted activity. A council must then give notice to the person proposing to undertake the activity that the particular activity is a permitted activity, and therefore no consent is required. 
  • Option 2 — If the consent authority decides that: 
    • The proposed activity requires a resource consent only because of a marginal or temporary non-compliance with the RMA, Regulations, a proposed or operative district plan
    • Any adverse effects on the environment of the proposed activity are no different in character, intensity, or scale than they would be in the absence of the marginal or temporary non-compliance, and 
    • Any effects of the proposed activity on a person are less than minor. 
Notably, the Council may determine an activity to be permitted without receiving an application for resource consent for the activity, and act on its own initiative. 

Limited appeal rights 

New limits on appeal rights are proposed by the Bill (clause 120). There will be no right of appeal against a decision of a consent authority on a resource consent application for: 

  • A 'boundary activity'
  • A subdivision, unless the subdivision is a non-complying activity
  • A residential activity, used for residential purposes on a single allotment if the activity status is controlled, restricted discretionary or discretionary. 
A 'boundary activity' is an activity which requires resource consent because of the application of one or more boundary rules, but no other district rules and does not involve a public boundary (which includes Crown reserves, rivers, etc). 

In addition to these specific limitations, a general limitation has been added for submitters on a resource consent application. A person who made a submission on an application will only be able to appeal a decision in respect of a matter raised in that person's submission on the application. 

Plan change processes 

The Bill introduces three planning tracks by which policy statements, regional and district plans (and changes) can proceed: 

  • Collaborative planning process
  • Streamlined planning process
  • Existing planning process (with some amendments from the current process). 
This is through amendments to Schedule 1 of the RMA. 

Collaborative planning process 

The relevant local authority can choose to use this option, after considering a specified list of matters (such as whether the issues to be dealt with would benefit from the use of the collaborative process, the view and preferences of those affected, whether the local authority has the capacity to support the collaborative process, etc). 

Effectively, this process provides for a Collaborative Group (Group) to be appointed and come up with a consensus view on issues it is given to consider, in consultation with the community and iwi. This occurs before any policy statement/plan or change (proposed instrument) is prepared by the local authority. The steps that then follow are similar to the existing process, but with some additional steps and considerations along the way. Of note: 

  • Once a local authority opts into this process, it cannot change to a different process, unless it is unable to appoint a Group or the terms of reference are breached. 
  • The proposed instrument prepared by the local authority must give effect to matters where the Group attained consensus. 
  • Iwi authorities are provided with a copy of the proposed instrument before it is notified and advice can be provided. The local authority must have 'particular regard to' that advice. 
  • The 'report on submissions' prepared by the local authority must also go to the Group and iwi authorities with comments invited. 
  • A Review Panel (Panel) hears submissions and provides a recommendation to the local authority. 
  • A member of the Group may submit on the proposed instrument and may also give notice that one of its members will attend the hearing to assist the Panel. 
  • The local authority makes the final decision on the proposed instrument. If a recommendation of the Panel is rejected, the local authority must develop an alternative provision. 
  • The two year timeframe from notification to final decision remains. 
  • There are appeal rights by way of rehearing for the Group and iwi authorities (if they provided comments on the 'report on submissions'), and any person who made a submission (but only in relation to a provision or matter on which they made a submission). However, the Environment Court (Court) has the discretion on whether to rehear all or part of the evidence from before the Panel, but it must rehear the evidence of a witness if the Court has reason to believe the record of that evidence is incomplete. New evidence may only be introduced with leave of the Court. 
  • There is also an appeal right on questions of law to the Court. 
Streamlined planning process 

To be able to use this process a local authority must apply to the responsible Minister (Minister of Environment and/or Minister of Conservation) before giving notice under clause 5 or 38 of the First Schedule. You can only apply if one of the section 80C criteria apply (such as the proposed instrument will implement a national direction, as a matter of public policy it is urgent, it is required to meet a significant community need, an operative instrument has resulted in unintended consequences, or it will combine several instruments). 

Effectively, it is a process that is driven by a direction issued by the Minister under clause 77. It sets out the required steps in the process and timeframes the local authority is to follow, and any other procedural matters the Minister sees fit (ie Schedule 1 does not apply, unless there is reference to any of its provisions in the direction). Of note: 

  • At a minimum, the direction must provide for consultation with affected parties, public or limited notification, an opportunity for written submissions, a report showing how submissions have been considered and the changes (if any) to the proposed instrument, and an assessment of costs and benefits. The Minister may also include any other procedural requirements and time frames that he or she considers necessary. It must include a time frame within which the relevant direction must be complied. 
  • The Minister may either decline to approve the proposed instrument or refer it back to the local authority with approval, for further consideration or with specific recommendations for changes. 
  • The local authority may withdraw the proposed instrument at any time before the Minister makes his or her decision on the proposal. The Minister may also revoke a direction given and the proposed instrument is then deemed withdrawn, unless the local authority decides to continue under the usual Schedule 1 process. 
  • There is no right of appeal against any decision or action of the Minister or local authority under this subpart of the RMA (although the right to apply for judicial review remains). 
Existing planning process 

In terms of this process, the key changes are: 

  • A requirement to prepare the proposed instrument in accordance with any applicable iwi participation arrangement and in compliance with any arrangement that specifically provides a role for iwi authorities in relation to any plan or change. 
  • Clarification that that nothing in Schedule 1 limits any relevant iwi participation legislation or agreement under that legislation. 
  • A pre-notification requirement to iwi authorities consulted under clause 3 and the requirement to 'have particular regard to' any advice received from those authorities on the proposed instrument. 
  • An option for limited notification of the proposed instrument. 
  • No private plan change request can be made to a policy statement or plan made through the collaborative process until after it has been operative for three years. 
Part 2 

Part 2 will be amended. However, gone is the suggestion to combine sections 6 and 7. Rather, the only change is the insertion of a new matter — 'significant risks from natural hazards' — in the list of matters of natural importance under section 6. This will require decision makers to take a risk based approach to assessing natural hazards. 

One possible implication is that the current approach to the conflict between historic heritage and earthquake prone buildings may need to be revisited. Watch this space! 

National Direction 

The changes proposed will give the Government greater scope to specify its priorities and direct councils to follow them. 

National Planning Templates - one plan to rule them all 

In essence, the Bill provides a process for the Minister to implement a national planning template (NPT) that relates to any regional policy statement, regional plan or district plan. An NPT can require a local authority to make changes to the form of its policy and planning documents, and to the content of those documents. This includes the introduction of objectives, policies and methods (including rules for plans) as directed by the Minister and the NPT. The Minister of Conservation has a similar power for an NPT that relates to a regional coastal plan. 

Changes made by local authorities that are directed by the NPT must not follow the RMA Schedule 1 process. The changes are simply to be publicly notified by the local authority within five days of the local authority amending its document. Other changes that are not specifically directed by the NPT but are required to give effect to the NPT must be made using one of the processes set out in Schedule 1 (we address the three processes proposed under the 'Plan Change Process' section above). 

The Bill provides the requirement for the Minister to approve an NPT within two years of the Bill receiving Royal assent. 

Contents of a National Planning Template 

Clause 37 of the Bill inserts a new 'National Planning Template' heading and new sections 58B-58J. In summary, this new part of the legislation provides the Minister with the power to introduce, through Regulation, an NPT to address matters that are nationally significant or require national consistency. An NPT can also set out requirements to address any of the procedural principles set out in new section 18A.

The matters that can be included in the NPT are broad. It can: 

  • Specify the structure and form of regional policy statements, and regional and district planning documents. 
  • Address any of the matters specified in section 45A(2) and (4) (contents of NPSs) as if the NPT was an NPS. 
  • Set out objectives, policies and methods (including rules) that must or may be included in regional and district plans. 
  • Set out objectives, policies and methods (excluding rules) that must or may be included in regional policy statements. 
  • Specify a time frame or time frames for local authorities to give effect to whole or part of the NPT, including different time frames for different local authorities and different parts of the NPT. 
  • Specify that a local authority must review discharge, coastal or water permits under section 130 as a result of a new rule being included in plans. 
Process for approval of a National Planning Template 

Before approving an NPT the Minister must prepare a draft NPT, an evaluation report in accordance with section 32, publicly notify that draft and establish a process that: 

  • The Minister considers gives the public, local authorities, and iwi authorities adequate time and opportunity to comment on the draft, and 
  • Requires a report and recommendations to be made to the Minister on those comments. 
The specific process is at the discretion of the Minister provided it complies with the above. 

The Minister must consult with the Minister of Conservation if the NPT relates to a regional coastal plan. 

The Minister must then consider the report and recommendations made and carry out a further evaluation in accordance with section 32AA, and have particular regard to that evaluation when deciding whether to approve the NPT. 

The Minister may approve the NPT after making changes or no changes to the draft NPT, or withdraw all or part of the draft NPT. The Minister of Conservation has the ability to amend, withdraw or approve a draft NPT, but only to the extent it relates to regional coastal plans. 

The same process is to be followed for amending or replacing an NPT, except where the amendment has a not more than minor effect or is to correct errors or technical alterations. In that case, the Minister may amend the NPT by simply giving notice of the amendment in the Gazette. 

The Minister may also revoke the NPT or any part of the NPT. If the NPT or any part of it is revoked, that does not have the effect of revoking any provision of a plan or policy document included at the direction of, or in reliance on, a revoked provision of the NPT. 

Implementation of a National Planning Template 

If the NPT directs a plan or policy document to be amended (including a proposed plan or policy document) the relevant local authority must amend that document within the time frame specified in the NPT or, if no time frame is specified, within one year of notification of the approval of the NPT. The amendments directed (and any consequential amendments necessary to avoid duplication or conflict) must be made without using any of the processes set out in Schedule 1. The local authority must then give public notification of the amendments within five workings days. 

All other amendments to any policy or planning document required to give effect to any provision in the NPT (other than those amendments directed by the NPT) must be made using one of the processes set out in Schedule 1. The changes must be made within the time specified within the NPT, or if no time frame is specified, within five years after notification of the approval of the NPT. A slightly different time frame applies where an NPT is approved part way through a proposed plan or policy statement process. In that case, if no time frame is specified within the NPT, that plan or policy document must be amended within five years of that plan or policy document becoming operative. 

A local authority is also required to take any other action that is directed by the NPT. There is no clarification provided as to what this 'any other action' could be. There is, however, a provision that states that this section is subject to the obligations placed on local authorities under the RMA or any other act that relates to the preparation or change of policy and planning documents. 

An interesting note is that throughout the new part of the legislation dealing with NPTs is continual reference to electronic formats and internet sites with free access. This follows the recent trend of local authorities shifting towards electronic plans. 

National Policy Statements and National Environmental Standards 

The provisions relating to National Policy Statements (NPS) and National Environmental Standards (NES) have been strengthened to provide closer direction. As well as the existing requirement for an NPS to state the objectives and policies for matters of national significance that are relevant to achieving the RMA's purpose, NPSs may also now include matters local authorities have to consider in preparing policy statements and plans, and the matters they are required to achieve. Proposed amendments to the provisions for NESs will also enable central government to specify how consent authorities have to perform their functions in order to meet the standard in question. There is also a new combined process for the preparation of an NPS and NES at the same time. The aim is to reduce the time it takes to make both types of national instruments. 

Regulation-making 

The Minister's regulation-making powers have also been extended. Pending the development and notification of the template NPT, the Bill will enable the Minister to make the following Regulations:

  • Specifying permitted land uses and constraining the use of restrictions on residential development if these are not reasonably required to achieve the purpose of the RMA. 
  • Prohibiting or overriding rules which would duplicate, overlap or deal with the same subject matter included in other legislation. 
The new regulation-making powers also extend to excluding stock from water bodies so the Government can meet its election commitment to exclude dairy cattle from waterways by 1 July 2017. 

With the emphasis on simplifying/streamlining the consent process, the Minister also has the ability, through Regulations, to: 

  • Control the fast‑tracking of applications for particular activities or classes of activities
  • Prescribe the methods/criteria that a consent authority has to use to deal with notification, including determining 'affected persons'
  • Prescribe the form, content, and conditions of water and discharge permits, and 
  • Require consent authorities to fix fees or charges. 
Other legislation to be amended 

Although the Bill proposes significant amendments to the RMA that is not all the Bill proposes. Amendments are also proposed to the following legislation: 

Part 5 of the Bill sets out the proposed amendments to the EEZ Act. This includes amendments to various definitions, and replacement of significant portions of the current EEZ Act. The Bill proposes replacement of sections 35-58 of the EEZ Act, which: 
  • Sets out the types of activity
  • Provides for the preparation of EEZ policy statements by the Minister
  • Sets out the application process for marine consents, and 
  • Includes non-notified and publicly notified consent processes. 
A new section on appeals against decisions of Boards of Inquiry has been inserted as subpart 1B. The previous appeal provisions now relate only to Environmental Protection Authority (EPA) decisions with the Board of Inquiry decisions being subject to similar, but separate rights of appeal (still limited to points of law appeals to the High Court). Of note, the EPA and the Board of Inquiry who made the decision are automatically parties to any appeal. 

If you have any questions, or require further information regarding any aspect of this publication, please contact us.