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Your Guide to the Resource Management Act

Preface

1 Introduction

2 Who, How and What

3 Understanding the Resource Consent Process

4 Getting Involved in Resource Management Decision-making

5 Taking Action to Protect the Environment

6 Where to Go for Further Guidance

Appendix 1: Matters of National Importance and Other Matters

Appendix 2: Administrative Boundaries for City, District and Regional Councils

Appendix 3: Administrative Boundaries for the Department of Conservation

Appendix 4: Glossary of RMA Terms

Appendix 5: Glossary of Māori Terms

4 Getting Involved in Resource Management Decision-making

4.1 Your involvement is essential

The successful implementation of the RMA relies on input from all sectors of the community. Although the RMA provides some basic guidance, sustainable management in a local context is entirely dependent on the collective views of residents, businesses, employees, and anybody else with an interest in the way resources are used. The RMA provides a number of avenues to encourage your participation in the plan development and resource consent process.

4.1.1 Making submissions on policy statements and plans

Policy statements and plans are the public face of the RMA. They are prepared by councils as a way of identifying and addressing significant resource management issues for a local area. The initial stage in preparing policy statements and plans involves considerable input from council staff and specialists. However, councils do not have a mandate to impose the results of technical analysis on the community at large. In essence, the earliest drafts of a plan only represent the ideas and suggestions of the council concerned. When a council notifies a proposed plan or changes to an operative plan, it can decide that specific rules will not have any effect until the statutory process is complete. Any such council resolution to delay rules having effect must be included in public notification of the plan.

By definition, the environment includes people and communities, so it is essential the public contribute to the documents that councils prepare. The direction that policy statements provide and that plans follow also has a profound (if often unrecognised) effect on the way in which we conduct our daily lives and our business, and the way in which we value the environment as a whole. These documents need public input, and the RMA establishes a very rigorous process to enable that.

The RMA sets out the procedure for preparing, changing and reviewing policy statements and plans. This process is summarised in Figure 5 on the following page. During the preparation of a policy statement or plan the council must consult with the Minister for the Environment and other affected Ministers, other councils and tāngata whenua. This is when local authorities must carefully consider how issues of concern identified by tāngata whenua will be provided for in policy statements and plans. This implies that local authorities will consult, and build a good working relationship with tāngata whenua to get a good understanding of their concerns. Generally, the council will consult with the wider community as well. To do this, councils often use issues and options papers, draft policy statements and plans, roadshows, workshops, free phone lines, public meetings and the like. Comments are usually called for and dealt with relatively informally.

Before a proposed district plan is notified, district and city councils must invite requiring authorities and heritage protection authorities to give notice of their requirements for designations and heritage protection orders. The policy statement or plan is then publicly notified. This must include public notices in newspapers, but usually also includes flyers distributed to households and displays at the council's offices. Landowners and occupiers directly affected by the district plans must be individually served with the notice by the district or city council. At this stage the document is proposed.

This flow chart shows the typical process for preparing policy statements and plans. The process is as follows:

• Council prepares draft plan, policy statement or issues and options papers
• Council staff seek informal input via meetings, workshops etc.
• Council prepares proposed plan or policy statement
• Proposed plan or policy statement is notified; submissions called for
• Submission period closes
• Council prepares summary of submissions
• Council publicly notifies summary of submissions; calls for further submissions
• Period for making further submissions closes
• Pre hearing meetings or mediation may be held
• Council makes arrangements for hearings while staff examine submissions, further submissions, pre hearing meeting or mediation reports, and prepare reports
• Submitters provided with notice of hearings
• Submitters provided with copies of staff reports
• Hearings held
• Council deliberates on submissions
• Council releases decisions; publicly notifies each submitter of the decisions
• Submitters consider whether to refer council decisions to Environment Court.

Any person may then make a submission on a proposed policy statement or plan. You do not need to be a local resident, landowner or ratepayer to do so. The council will not charge you for considering your submission. The only costs you may incur will be your own time and any fees charged by those you may ask to help you.

The public notice provides a deadline for sending in submissions. Submission forms are available from the council. In your submission you must state:

• which specific provisions of the document you are commenting on
• whether you support or object to those provisions, or have a neutral stance
• the reasons for your submission
• the decision you seek from the council
• whether you wish to be heard at any hearing.

Your submission should be concise but also cover all the points you wish to make. Staff at the council will be able to advise you on the submission process.

The council is required to prepare a summary of submissions and publicly notify that as well. You can then lodge further submissions in response to the comments made by others in their original submissions. You must provide both the council and the person who made the original submission with copies of your further submission.

The council then sets down a time for anyone who has requested to be heard. You will usually be able to say whether that time suits you, but bear in mind that the council will be trying to schedule a large number of appearances. Usually, council staff will prepare recommended responses to the submissions to help the hearing committee consider them. You will normally have an opportunity to see these recommendations before you are heard.

Pre-hearing meetings are able to be held for plans. Parties may also be referred for independent mediation with their agreement. There is no power to require attendance at pre-hearing meetings for plans (as there is with resource consents - see Section 3.4.5). A report of the meeting or mediation must be prepared before the hearing and the local authority must have regard to this report in making decisions on the plan or policy statement.

Your submission will be taken into account if you choose not to appear. Once the hearings process has been completed, the council considers all the information before it, and releases its decisions. You will be personally notified of the decision that relates to your submission. The release of decisions is usually accompanied by the preparation of a revised version of the policy statement or plan, showing how the decisions will alter the text, which you can view or ask to be sent to you.

You then have 30 working days to appeal to the Environment Court if you are unhappy with the council's decisions on your submission. The process for hearing submissions and making appeals is identical to that used in the resource consent process (see Sections 3.4.6 and 3.5.8). The same principles of good practice described in that section also apply.

Once all decisions on submissions and requirements have been made, and appeals to the Environment Court have been resolved, the policy statement or plan can be made operative. Before a policy statement or plan is operative, both the transitional and proposed statement or plan applies. The RMA provides that rules of proposed plans can be made operative once they are not subject to any appeals. If you are in doubt about which plan provisions apply, ask the council for advice.

Local authorities must conduct hearings, make and notify decisions on submissions, and complete their section 32 duties in relation to making decisions on plans or plan changes within two years of the proposed plan being notified. Once the entire plan is made operative, it then has a life of 10 years before a review is required and the whole process begins again, although anybody (and not just the council) can apply for a change to the plan during that time. The process for making submissions to plan changes is identical to that described above.

Between the date of notification and when the plan is made operative, the council can also initiate variations to the proposed plan. Variations usually happen because issues arise during the process that were not foreseen when the plan was originally prepared. The procedure for doing so is the same as that for preparing and notifying the plan itself. Most councils hear submissions on the plan and the variations to it at the same time.

Regional coastal plans follow a slightly different procedure. The preparation, notification and submission process is the same, but the document is approved by the regional council, before being referred to the Minister of Conservation for approval. The Minister of Conservation may, however, direct that changes be made to a regional coastal plan, and the plan does not become operative until it is adopted by the Minister.

The RMA offers similar opportunities to contribute to preparing national policy statements and national environmental standards, water conservation orders and heritage protection orders.

4.1.2 Notices of requirements - designations

Like all development proposals, providing works - such as schools, roads, gas lines and power supplies - that serve our growing population requires a high level of planning, design and forethought. For example, major roading proposals may take upwards of five years from preliminary need assessments to the start of construction. These long term developments require a different process for assessing their environmental effects from the resource consent process. They are dealt with through the designation process.

A designation gives notice of an intention to use land in the future for a particular development, through a provision in a district plan that provides for the work. It does this without the agency responsible for the work having to obtain a resource consent. A designation provides for an activity in terms of the district plan only. Should the proposed activities require resource consent from the regional council, these still need to be sought through the same process as any other applicant.

Land can only be designated by requiring authorities. Under the RMA, requiring authorities automatically include all Ministers of the Crown, regional councils and territorial authorities. Network utility operators, such as telecommunication, electricity and water supply companies, may also designate land if the Minister for the Environment approves them as a requiring authority. Requiring authority status cannot be approved unless the Minister is satisfied that the applicant will, among other things, give proper regard to the interest of those affected and of the environment in general. Approximately 100 companies have been approved as requiring authorities.

The works provided by network utility operators generally have a higher public value than other land uses. The general public therefore benefits by having the activities provided efficiently. Designations also provide efficiently for large-scale projects and those which form linear networks (eg, gas pipelines, electricity lines).

4.1.3 Making submissions on notices of requirements - designations

The designation process does not allow requiring authorities to carry out their proposals without any consideration for people affected by a project or the environment in general. Notices of requirement for designations are submitted to territorial authorities to be included in district plans. Notices of requirement must be publicly notified, providing the public with an opportunity to make submissions. A notice of requirement must be accompanied by an assessment of environmental effects, extent of consideration of alternatives and a statement of consultation, amongst other matters.

The district or city council that receives a notice of a requirement for a designation must publicly notify the proposal, invite submissions, hear interested parties and make a recommendation to the requiring authority on whether it should confirm or withdraw the requirement. It may recommend that conditions be attached to the designation. The requiring authority must then decide whether to accept, reject or modify the recommendation. Once the decision has been publicly notified, the council or any person who made a submission has a right of appeal to the Environment Court. If confirmed, the designation is shown in the district plan and operates as a rule to permit the work. Where a designation is included in a plan nothing can be done to the land without written consent from the requiring authority.

Existing designations (ie, those approved under previous legislation) are also subject to review through the district plan review process.

The designation process provides an opportunity for the public to have a say in the siting of major public developments such as motorways and airports. As there is no need for a resource consent for designated lands, there is no later opportunity to make a submission or object if you consider your concerns have not been met.

Designations tend to be relatively general in their description of the proposals they are catering for. The designation process basically allows for the concept to be approved while the details (such as building placement, landscaping and road design) are worked on. To provide certainty, requiring authorities must provide outline plans for public works and projects on designated land before construction begins. These plans must show the height, shape, bulk and location of the work, and details of parking, access and landscaping.

Like resource consents, designations have a built-in expiry date (five years unless otherwise specified or duly extended), and will generally be subject to conditions which control the work that can be carried out under the designation.

If your land is subject to a designation, you may be entitled to seek compensation under the Public Works Act. The Act recognises this by allowing affected landowners to apply to the Environment Court for an order that directs the requiring authority to acquire the land. It also provides network utility operators with an ability to acquire land that they need for designations under the Public Works Act. These proposals allow requiring authorities to purchase the required properties without having to obtain resource consent for a potentially large number of individual properties.

4.1.4 Making submissions on notified applications for resource consent

Anybody can make submissions on applications for resource consent that have been publicly notified. You may become aware of such proposals because the consent authority has notified you as a directly affected party, or you may learn about it through a public notice in the newspaper or on a sign put up at the site in question. In some cases, the council may decide to limit notification to those parties it considers may be affected by the proposal. In these cases, only those served with the notice may make a submission. Making a submission provides an opportunity for the council to address any concerns you may have about the proposal.

However, a number of concerns unrelated to environmental matters are not appropriate to pursue under the RMA, and are not valid grounds for a submission. For example, you cannot use the submission process to object to a trade competitor's proposal on the grounds that it would affect the commercial viability of your own business.

The resource consent process itself is outlined in Section 3 of this guide. The process for making submissions on notified resource consents is much the same as that for policy statements and plans (see Section 4.1.1). The only difference is that submissions must be lodged within 20 working days of public notification, and there is no opportunity to make further submissions. More detailed information on the proposal can be obtained from the applicant or the consent authority. You must provide both the council and the applicant with a copy of your submission. Again, you have a right of appeal to the Environment Court on the basis of the council's decision. Lodging a submission will not cost you and the consent authority will not charge you to consider it.

Councils may invite or require you to attend pre-hearing meetings. Should you be required to attend and you do not attend without reasonable excuse, the council may decline to consider your submission. The council may also ask for more information in relation to your submission either before or at the hearing. At the hearing, the council may also direct a person presenting a submission not to present the whole or part of the submission, if all or any part of it is irrelevant or not in dispute, or a timeframe for the presentation may be given.

From August 2007, a submission can be struck out if it is deemed to be frivolous, vexatious or contains no reasonable case. Accordingly, it is important to clearly state the adverse environmental concern to you.

4.1.5 Giving written approval on non-notified applications for consent

You may be approached by an applicant for resource consent asking you to give written approval for what they propose to do. This may mean the consent authority has identified you as an affected party, and will not serve notice of the application if the applicant can obtain written approval from such parties. It may also indicate the applicant has identified you as potentially affected without the guidance of the consent authority.

4.1.6 Applying for a plan change

Once plans become operative they are not set in stone. Any person can request a change to a regional or district plan, or ask that a regional plan be prepared to address a particular issue. The council can move to change its own plan at any time. However, only a council or a Minister of the Crown may request a change to a regional policy statement. The request must specify a purpose and the environmental results anticipated from preparing the plan or implementing the change. In effect, an assessment of environmental effects must be prepared by the requester.

The council may, within 20 working days of your request, require further information to help it consider the proposal, specifying the reasons for the request. The applicant has the right to refuse to provide the further information requested and to require the authority to consider the request without that information. The council then has the ability to reject or decline the plan change request on the grounds of insufficient information. There are limited opportunities for the council to modify or refuse the plan change or to treat it as an application for resource consent. The council must decide which approach to take with the plan change within 30 working days of receiving all information. The council will probably seek to recover the cost of considering your request for a plan change from you. Any decision to refuse a plan change, or to treat it as a resource consent, can be challenged, firstly through an objection to the council and then through an appeal to the Environment Court.

This is not intended to put you off considering using the plan change process. Councils can take over plan changes suggested by interested parties which they believe have considerable wider public benefits. If the council agrees to the proposal, or is directed to agree by the Environment Court, the plan change goes through the standard process described above. Changes must be notified within four months of agreeing to the request or within the period directed by the Environment Court.

4.1.7 Appealing decisions on policy statements and plans

If you do not agree with a decision (or decisions) the council has made regarding either your submission on a plan or policy statement or plan change, or the plan change itself, you are able to lodge an appeal to the Environment Court (refer to Section 3.5.8 of this guide for details about lodging an appeal).

4.1.8 Applying for a declaration

Anybody may apply to the Environment Court for a declaration. Declarations are decisions made by the Court to help in the administration of the RMA. The declaration process is a useful way of seeking clarification or definition of matters relating to the RMA's operation. Declarations may cover such matters as:

• obtaining a legal interpretation of the wording or provisions of a plan, particularly where there is some dispute
• determining whether an activity holds existing use rights
• clarifying the extent of decision-makers' powers under the RMA, including any overlaps between them
• clarifying how far these agencies are expected to go in examining alternatives to regulation
• resolving inconsistencies between policy statements, plans and other instruments such as water conservation orders
• determining whether certain acts or omissions are likely to contravene the RMA, the plans prepared under it, or a resource consent
• issues relating to the interpretation, administration and enforcement of the RMA.

A limited process of public notification must be followed when declarations are sought, and the RMA also gives the Environment Court the ability to make, or decline to make, a declaration.

4.2 Other avenues

Outside the RMA, there are other ways you can influence decisions on environmental issues. The Local Government Act 2002 requires councils to prepare annual plans showing how they intend to allocate their resources (and your rates) each year. Annual plans usually include the detailed programmes and costings for non-regulatory environmental initiatives that have been established in policy statements and plans prepared under the Act. Such initiatives may include incentive schemes to protect indigenous vegetation or to promote the planting of indigenous plants around people's properties or marae, street improvement programmes for the central business district, and recycling programmes. Councils are required to release draft versions of these plans and invite submissions from members of the public. You will be able to present your submission to councillors and staff if you wish to.

The Local Government Act 2002 requires local authorities to publicly notify significant proposals they are pursuing or agreeing to. The Act also requires local authorities to prepare a long term council community plan, which is prepared every three years. You are able to lodge a submission to these proposals/plans and present your submission much in the same way as the annual plan process. Visit Local Government New Zealand's website for information about how to participate in these processes.

The environmental monitoring reports regularly produced by councils are a useful basis for making submissions on both RMA policy statements and plans and annual plans. Councils are required to monitor the state of the environment and the effect of their own policy initiatives under the RMA. Most choose to prepare annual or biannual monitoring reports, which will provide a readable and informative summary of local environmental issues, and a good starting point for making a submission.