Faster processing, more certain outcomes, greater accountability of councils and streamlined national infrastructure consenting through a new Environmental Protection Agency are all part of the new package of reforms for the Resource Management Act:- welcome changes for business and the wider community concerned with the RMA’s impact on delaying development and complicating seemingly straightforward environmental issues.

On the other hand some aspects of the Bill potentially restrict a long history of public participation in the planning process which could result in communities being left out of having an adequate voice in matters that directly impact on them. For example, the removal of the right to appeal plan decisions other than on a point of law, reinstatement of Environment Court powers to award security for costs and the ability for applicants to make applications directly to the Environment Court are all measures which on a first glance are aimed at restricting the current level of public participation in the process.

The Bill is a welcome start to much needed reform. However the detail needs close scrutiny to ensure new opportunities for delay are avoided.

Key Changes to the Act include:

Improving the resource consent process

 

These amendments look to improve and speed up the process for obtaining resource consents: 


 

  • Removing the presumption in favour of notification and amending criteria for public notification of projects with more than minor effects on the wider environment;

 
 

  • Simplifying reporting requirements for council decisions;
 
  • Inserting provisions into the RMA that removes blanket tree protection rules in urban areas;


 

  • Limiting the ability of councils to “stop the processing clock” by using requests for further information. Council’s will only be able to request further information once;


 

  • Requiring councils to develop a discount policy for late processing of consents and a complaints procedure where councils have been responsible for delays;


 

  • Inserting provisions requiring hearings to be closed no later than 10 working days after the last party’s presentation of evidence to reduce delays in getting a decision.


Streamlining decision making

 

  • Enabling parties to choose whether a notified application is considered by councillors or independent commissioners. For some contentious applications this would avoid politically motivated decisions being made by councillors in the RMA context;
 
  • Providing ability for parties to request that their application be determined in the Environment Court without first having a council hearing if the council agrees;

     
  • Removing the Minister of Conservation’s powers in respect of decision making on restricted coastal activities;


 

  • Amending provisions in relation to designations so that councils make decisions on notices of requirement instead of the requiring authority.


Improving plan development and plan change processes 

 

  • Removing the ability for appellants to make general challenges or to seek the withdrawal of the entire proposal policy statement or plan;
 
  • Modifying the requirement for councils to summarise the submissions and call for further submissions;

     
  • Removing the non-complying activity category from plans so that these activities become classified as full discretionary activities;

     
  • Simplifying the process so that council decisions are not required on each submission but according to issues raised;

     
  • Enabling regional councils and territorial authorities in a region to combine and produce a single RMA planning document;

     
  • Limiting appeals on proposed policy statements and plans
    to questions of law;

     
  • Removing requirements for plans to be reviewed every 10 years so the councils may review plans as and when required.


Discouraging frivolous and anti-competitive objections

 

  • Reinstating Environment Court powers to award security for costs to discourage appeals of dubious merit. The key question to be answered by the legislation is how will the Court determine what constitutes a frivolous or anti-competitive appeal?

     
  • Filing fees for lodging appeals increased from $55 to $500;

     
  • If an appeal is brought, financed or encouraged by trade competition then the party adversely affected by the appeal may seek to recover all damages for the appeal. This regime can also be used to punish a party that brings such an appeal.

    The effect of this for environmental groups is to make participation in the RMA process more difficult and costly.


Projects of National Significance

These developments look to be a positive step forward to make it easier to undertake infrastructure projects: 

 

  • Applications for projects that are determined as having “national significance” can be made directly to the Environmental Protection Authority (EPA). A criterion has been added to recognise nationwide network utility operators where projects play a significant role in maintaining the integrity of national networks (ie roads, railways, pipelines and electricity transmission lines);

     
  • If the EPA decides the application meets the criteria and the matter will be referred to a board of inquiry chaired by an Environment Court judge. Final decisions must be made within 9 months of the date of notification;

     
  • The EPA will also take on the role of the Environmental Risk Management Authority (ERMA). This will be managed by the Ministry for the Environment until the second phase of amendments establishes the structure of the EPA.


Improving workability and compliance

 

  • Raising the maximum fines for committing offences under the RMA from $200,000 to $600,000 for corporate offenders and to $300,000 for individuals;

     
  • Providing the Court with the power to require a review of a resource consent held by an offender;

     
  • Enabling councils to take enforcement actions against the Crown.


Improving national instruments

 

  • Improving the development process for national policy statements


Phase 2

The next phase of reform is anticipated later this year and will include:

 

  • Establishing the structure of the EPA; 


 

  • Improving freshwater allocation and management; 


 

  • Encouraging greater collaboration in city development and design;


 

  • Issues relating to aquaculture.


For further information contact one of Sharp Tudhope’s leading resource management team members:

Darryl Fletcher

Sacha Hollis