2 Legislative Context
The following section outlines the legislative context for an assessment of environmental effects (AEE) relating to air quality, as provided by the Resource Management Act.
2.1 The requirement for a consent
The purpose of the Resource Management Act 1991 (RMA) is to promote the sustainable management of natural and physical resources, including air. Under section 30 of the RMA, consenting authorities have a statutory responsibility to control discharges of contaminants into air. Section 15 restricts the discharge of contaminants into air, as follows:
Discharge of contaminants into environment -
(1) No person may discharge any -
...
(c) Contaminant from any industrial or trade premises into air; ...
unless the discharge is expressly allowed by a rule in a regional plan and in any relevant proposed regional plan, a resource consent, or regulations.
(2) No person may discharge any contaminant into the air, or into or onto land, from -
(a) Any place; or
(b) Any other source, whether movable or not, -
in a manner that contravenes a rule in a regional plan or proposed regional plan unless the discharge is expressly allowed by a resource consent, or regulations, or allowed by section 20 (certain existing lawful activities allowed).
Section 15(1)(c) means that any discharge of a contaminant into air from any industrial or trade premises is allowed only if it is expressly authorised by a permitted activity rule in a regional plan, by a resource consent, or by regulations.
Under section 15(2) the opposite presumption applies. That is, all discharges of contaminants into air from sources other than industrial or trade premises can take place without resource consent, unless there is a relevant rule in a regional plan that states otherwise.
If an air discharge consent is granted, section 108 allows for a consent condition requiring the holder to adopt the best practicable option to prevent or minimise any actual or likely adverse effect on the environment. This applies to the discharge applied for, and other discharges (if any) from the same site or source.
Within the RMA, there are also policy instruments (regional policy statements, regional plans and district plans) that enable more detailed regional and local management of environmental resources, such as air. Liaison with consenting authorities is recommended so that any such constraints are identified at an early stage.
2.2 National environmental standards
National policy statements and national environmental standards are also relevant. Readers should familiarise themselves with the legislative requirements of the Resource Management (National Environmental Standards Relating to Certain Air Pollutants, Dioxins and Other Toxics) Regulations 2004 as amended in 2005 (hereafter referred to as the Standards). For further information, see in particular the Updated Users Guide (Ministry for the Environment, 2005b).
2.3 Types of activities
The RMA classifies activities into six primary categories:
- permitted
- controlled
- restricted discretionary
- discretionary
- non-complying
- prohibited.
These different categories determine aspects such as whether a resource consent application:
- is required before carrying out the activity
- can be lodged (eg, you cannot lodge a consent for a prohibited activity)
- will be publicly notified
- must, may or may not be granted
- what will be considered when making a decision on a resource consent application.
Rules in regional and district plans determine which category an activity falls within. The consenting authority can also confirm whether it has an operative plan or a proposed plan (in the case of the latter, a transitional plan may still apply). The plan will clarify which category a proposed activity comes under.
Get in touch with the consenting authority to confirm which category an activity falls within. This may range from a simple confirmation to more detailed discussions, but a pre-application meeting is strongly recommended.
The distinction between the six activity classes is outlined below. [Based on material in the Ministry for the Environment-funded website http://www.rmaguide.org.nz/rma/index.cfm.]
Permitted activity
A permitted activity may be carried out without the need for a resource consent so long as it complies with any standards, terms or conditions specified in the relevant regional or district plan.
Controlled activity
A controlled activity requires a resource consent before it can be carried out. The consent will not be publicly notified unless a rule in a plan states that notification is required. Written approvals may still be required from affected persons, and the application may need to be served if all written approvals have not been obtained. The consent authority must grant the consent for an air discharge application for a controlled activity. It can impose conditions on the consent, but only on matters over which the council has reserved control in the relevant plan. These are the only matters the applicant's assessment needs to address.
For controlled, restricted discretionary, discretionary and non-complying activities, any effect on a person who has given written approval to the application will not be considered. In addition, the consent authority may disregard an adverse effect of the proposed activity if the plan permits an activity with that effect (the 'permitted baseline' test).
Restricted discretionary activity
A restricted discretionary activity requires a resource consent before it can be carried out. The consent authority can then exercise discretion as to whether or not to grant consent, and whether to impose conditions, but only in respect of matters to which it has restricted its discretion in the plan. These are the only matters the applicant's assessment needs to address.
Discretionary activity
A discretionary activity requires a resource consent before it can be carried out. The consent authority can exercise full discretion as to whether or not to grant consent and what conditions to impose on the consent if it is granted. An activity is discretionary if:
- the plan identifies it as discretionary
- a resource consent is required for the activity but the plan fails to classify it as controlled, restricted discretionary, discretionary or non-complying
- the activity is described as prohibited by a rule in a proposed plan that is not yet operative.
Non-complying activity
A non-complying activity requires a resource consent before it can be carried out. A resource consent can be granted for a non-complying activity, but first the applicant must establish that either the adverse effects of the activity on the environment will be minor, or that the activity will not be contrary to the objectives of the relevant plan or proposed plan.
Prohibited activity
A prohibited activity may not be carried out. No resource consent can be applied for, or granted, to authorise the activity. Parties wishing to carry out a prohibited activity must apply for a change to the plan to reclassify the activity.
Prohibited activities and the National Environmental Standards for Air Quality
In addition to any activities prohibited within regional plans, the Standards prohibit the following activities:
- landfill fires
- burning of tyres [Although burning of tyres and coated wire is prohibited, exemptions are provided for industrial and trade premises that have resource consent and emission control equipment. Such activities are more akin to discretionary activities, albeit applied nationally through regulation.]
- bitumen burning for road maintenance
- burning of coated-wire*
- burning of oil in the open
- new high-temperature hazardous waste incinerators
- school and healthcare incinerators, unless resource consent is obtained before October 2006.
Further detail is provided in the Updated Users Guide (Ministry for the Environment, 2005b).
2.4 Assessment of environmental effects
Section 88 of the RMA requires an Assessment of Environmental Effects (AEE) to accompany an application for discharge consent. The Fourth Schedule states what material should be included in an AEE. Section 88, 'Making an Application', requires:
(1) A person may apply to the relevant local authority for a resource consent.
(2) An application must:
(a) be made in the prescribed form and manner; and
(b) include, in accordance with Schedule 4, an assessment of environmental effects in such detail as corresponds with the scale and significance of the effects that the activity may have on the environment.
The Fourth Schedule states:
(1) Matters that should be included in an assessment of effects on the environment Subject to the provisions of any policy statement or plan, an assessment of effects on the environment for the purposes of section 88 should include:
(a) A description of the proposal;
(b) Where it is likely that an activity will result in any significant adverse effect on the environment, a description of any possible alternative locations or methods for undertaking the activity;
(c) Repealed
(d) An assessment of the actual or potential effect on the environment of the proposed activity;
(e) Where the activity includes the use of hazardous substances and installations, an assessment of any risks to the environment which are likely to arise from such use;
(f) Where the activity includes the discharge of any contaminant, a description of:
(i) The nature of the discharge and the sensitivity of the proposed receiving environment to adverse effects; and
(ii) Any possible alternative methods of discharge, including discharge into any other receiving environment;
(g) A description of the mitigation measures (safeguards and contingency plans where relevant) to be undertaken to help prevent or reduce the actual or potential effect;
(h) An identification of the persons affected by the proposal, the consultation undertaken, if any, and any response to the views of any person consulted;
(i) Where the scale or significance of the activity's effects are such that monitoring is required, a description of how, once the proposal is approved, effects will be monitored and by whom.
(1A) Matters that must be included in an assessment of effects on the environment
As assessment of effects on the environment for the purposes of section 88 must include, in a case where a customary activity is, or is likely to be, adversely affected, a description of possible alternative locations or methods for the proposed activity (unless written approval for that activity is given by the holder of the customary rights order).
(1AA) To avoid doubt, clause 1(h) obliges an applicant to report as to the persons identified as being affected by the proposal, but does not -
(a) oblige the applicant to consult with any person; or
(b) create any ground for expecting that the applicant will consult with any person.
(2) Matters that should be considered when preparing an assessment of effects on the environment
Subject to the provisions of any policy statement or plan, any person preparing an assessment of effects on the environment should consider the following matters:
(a) Any effect on those in the neighbourhood and, where relevant, the wider community including any socioeconomic and cultural effects;
(b) Any physical effects on the locality, including any landscape and visual effects;
(c) Any effect on ecosystems, including effects on plants or animals and any physical disturbance of habitats in the vicinity;
(d) Any effect on natural and physical resources having aesthetic, recreational, scientific, historical, spiritual, or cultural, or other special value for present or future generations;
(e) Any discharge of contaminants into the environment, including any unreasonable emission of noise and options for the treatment and disposal of contaminants;
(f) Any risk to the neighbourhood, the wider community, or the environment through natural hazards or the use of hazardous substances or installations.
The information required by the Fourth Schedule must be provided to consenting authorities when submitting an application for air discharge consent. If the information and other requirements of the RMA, in particular sections 88 and the Fourth Schedule, are not provided with the application (unless previously agreed otherwise at a pre-application meeting), then the consenting authority may:
- reject the application within five days under section 88(3) if there is insufficient information; and, where the application is lodged again, under section 88(4) it may treat this as a new application; or
- at any time after lodgement, request further information to be provided within 15 working days, under section 92(1) of the RMA. The application may then be put on hold under section 88B until the information is supplied. However, the applicant can also choose either to object to the request under section 37 or to refuse to provide the further information. If the applicant objects, then the council will consider the objection. If the applicant refuses, or if information is not provided within 15 working days, the council will proceed to determine the application.
This good practice guideline expands on the requirements of Schedule 4 and is designed to help applicants meet their requirements by using current best practice techniques for assessing the impacts of discharges to air from industry.
Note that sections 104E and 104F of the RMA place climate change outside the remit of consenting authorities in their consideration of discharge consents.
