Overview of the Resource Management (Simplifying and Streamlining) Amendment Act 2009
1. Background and Process
The Resource Management Act (RMA) came into force in October 1991 and replaced or amended more than 50 other laws relating to town planning and resource management.
The RMA is a complex statute that is designed to help manage a wide range of natural and physical resources, and involves consideration of conflicting values, expectations, and rights in regard to the environment.
In the 18 years since the RMA came into force there has been growing criticism of its ability to effectively manage complex environmental issues and the slow and costly plan preparation and consenting processes.
The Government promised to introduce legislation into the House to amend the RMA within 100 days of the formation of the new government. Streamlining and simplifying the Resource Management Act is an important part of the Government's programme, to assist an economic recovery.
Pre-election policy announcements also signalled an intention to create an Environmental Protection Agency (EPA) to achieve national environmental goals. One of the aims of the new EPA would be to centralise some regulatory roles which are best exercised on a nationwide basis.
In order to provide a clearer understanding of the issues and opportunities for a reform of the RMA the Minister for the Environment wrote to all local authorities on 1 December 2008 seeking their comment. On 10 December 2008 the Minister for the Environment invited members of key sector organisations to send in comments. Comments from more than 250 parties were received.
Also in December 2008 the Government announced the appointment of the RMA Technical Advisory Group (TAG) to support the Government's programme of reform of the Resource Management Act. The group was formed, and its terms of reference agreed, as part of the National - ACT confidence and supply agreement.
The TAG is chaired by barrister Alan Dormer and includes environmental consultant Guy Salmon, Rodney Mayor Penny Webster, lawyer Paul Majuery, Tasman District Council Environment and Planning Manager Dennis Bush-King, barrister Michael Holm, planning consultant Michael Forster, and businessman and former Deputy Prime Minister Rt Hon Wyatt Creech.
The TAG, officials, and Ministers met on more than six occasions until February 2009 and recommended a significant package of amendments spread across eight broad topic areas:
- improving mechanisms to manage frivolous and vexatious objections and appeals, and trade competition
- improving the processing of applications for proposals of national significance
- establishing an Environmental Protection Authority (EPA)
- improving plan development and change processes
- improving resource consent processes
- improving the efficiency and effectiveness of national instruments
- improving the effectiveness of enforcement and compliance mechanisms
- streamlining decision making.
At the same time, the opportunity was taken to resolve technical issues around the workability of existing provisions in the RMA. This became a ninth general theme.
These nine topic areas were incorporated into the more than 160 clauses that made up the Resource Management (Simplifying and Streamlining) Amendment Bill 2009 (the Bill) which had its first reading on 19 February 2009, 99 days after 2008 general election.
The Bill passed the first reading and was referred to the Local Government and Environment Select Committee. Submissions on the Bill opened on 20 February 2009 and closed on 3 April 2009.
Of the 840 parties that made submissions on the Bill, 339 took the opportunity to be heard at Select Committee meetings in Auckland, Wellington and Christchurch, and via teleconference.
The Select Committee considered more that 7,000 pages of submissions, reports and other advice. They were assisted in their consideration of redrafted provisions by an expert panel that comprised of two lawyers who specialised in the RMA (John Hassan and Helen Atkins), a retired Environment Judge (Professor Peter Skelton) and the Chief Executive of Environment Southland (Ciaran Keogh).
The Local Government and Environment Select Committee reported the Bill back to the House on 18 August 2009 with a recommended commencement date of 1 October 2009. The second and third readings of the Bill took place in September 2009.
2. Frivolous, vexatious and anti-competitive objections
The Issue:
Resource consent and private plan change applicants can experience significant costs and delays as a result of having to defend their applications from challenges made by trade competitors, or frivolous or vexatious objectors.
The costs and delays to applicants from anti-competitive behaviour can range from thousands of dollars and weeks, through to millions of dollars and years. Administration costs for councils and Courts can also be substantial. Some of the highest costs are incurred in the so-called “supermarket wars”, where proponents and opponents have spent millions of dollars fighting each other and delays of years have resulted.
In other instances, a party objecting or appealing a proposal may be doing so for trade competition reasons but may still be considered frivolous or vexatious. Such behaviours add time and cost to RMA processes without any real benefit to improving environmental outcomes.
What the Resource Management (Simplifying and Streamlining) Amendment Act (RMAA) 2009 does:
Security for costs reinstated
Consistent with pre-election policy announcements, the RMAA 2009 reinstates the powers of the Environment Court to award security for costs. Security for costs is intended to:
- Make potential appellants think more carefully about the merits of their appeal and whether they can afford to pay costs if costs are awarded against them.
- Ensure that parties who initiative proceedings in the Environment Court do not escape their obligations in terms of paying costs should they lose, leaving others to pay the Bill.
Tighter restrictions on submissions by trade competitors
Parties that are trade competitors of an applicant cannot make a submission. The exception to this is when they are affected by an environmental effect and this is not related to trade competition.
This change is intended to limit the ability of trade competitors to use RMA processes to thwart or stymie the applications of others, while keeping the ability of the trade competitor to have their say when their interests are impacted upon by an environmental effect.
Damages regime introduced
The RMAA 2009 introduces a new regime whereby a party participating in Environment Court proceedings can seek a declaration from the Court that another party is participating for trade competition reasons. If the Court makes a declaration that the other party has been participating for trade competition reasons then the party who successfully obtained the declaration can seek damages from in the High Court.
The damages regime is designed to:
- Act as a disincentive to anti-competitive behaviours by reducing the financial attractiveness of such behaviour.
- Provide a mechanism for those who are disadvantaged by anti-competitive behaviours to recoup a greater proportion of their costs.
3. Environmental Protection Authority
The Issue:
While the RMA already provided a mechanism by which the Minister for the Environment could call-in a proposal of national significance, there was no dedicated authority to receive or process applications that were of national significance.
It is intended that the EPA will in time have a broader range of functions than receiving and processing applications for proposals of national significance, however the exact scope of these functions and setting up of such an organisation are being dealt with as part of phase two of the RMA reforms.
What the Resource Management (Simplifying and Streamlining) Amendment Act (RMAA) 2009 does:
The RMAA 2009 sets up a transitional Environment Protection Authority as a statutory office. The roles, functions and powers of the EPA will, for the time being, be exercised by the Secretary for the Environment. The Secretary will be able to delegate these functions to his or her employees within the Ministry for the Environment, to allow the administrative work to be carried out by a dedicated unit. The creation of the EPA as an independent statutory office gives the necessary degree of separation from the Ministry for the Environment’s core business.
The role of the EPA will be to receive and process resource consent and plan change applications, and notices of requirement for proposals of national significance and the support the boards of inquiry (or Environment Court) that will be making decisions on them. The EPA will also have the ability to grant certificates of compliance for proposals of national significance.
4. Proposals of national significance
The Issue:
Significant projects can be subject to unreasonable delays and inconsistent consideration of national level benefits. The intention of the reform is to make greater use of the existing board of inquiry process, but to also improve the capacity for local authorities and communities to have confidence and involvement in that process.
The reform proposals are based on the existing ministerial intervention provisions of the RMA that enable the Minister to make a direction that a matter is of national significance and refer it to a board of inquiry or the Environment Court for a decision. The objective of the reform measure is to provide an efficient and robust process for the consideration of, and decision making on, resource consent applications, plan changes and notices of requirement for large infrastructure or public work projects that are of national significance.
What the Resource Management (Simplifying and Streamlining) Amendment Act (RMAA) 2009 does:
The RMAA 2009 sets up a new process for the receipt and processing of, and making decisions on, proposals of national significance. The key features are:
- Applicants will have the ability to make applications directly to the EPA. These applications will be assessed against the national significance factors set out in section 144 of the RMA. These include two new factors - one that relates to network utility operations that extend over more than one district or region, and one that recognises proposals that can assist the Crown in fulfilling its public health, welfare, security or safety obligations or functions.
- If the EPA considers that the matter is of national significance it will make a recommendation to the Minister that he refer the matter to a board of inquiry or the Environment Court for consideration and decision. If the EPA considers that the matter is not of national significance (having regard to the factors set out in the Act) it will recommend that the Minister refer the matter to the relevant local authority to be processed under normal processes.
- The Minister retains the ability to decide to refer a matter to a board of inquiry or the Environment Court when he receives a request directly from an applicant or a local authority or of his own volition, even though the matter has not been lodged with the EPA.
- If a board of inquiry is appointed to consider and decide the matter it will be chaired by a current, former or retired Environment Judge or a retired High Court Judge. The board appointment process will require the Minister to seek suggestions for a member of the board from the relevant local councils and there is a requirement for the Minister to consider the need for members that have, among other things, skills and experience relating to the local community.
- The Environmental Protection Authority will provide administrative services to the board of inquiry. It is also able to issue certificates of compliance for an activity related to a proposal of national significance.
- A final decision on the application(s) must be made within 9 months of the date of notification. However, the Minister shall have the power to extend this timeframe if he or she considers that there are special circumstances.
- There is no provision for merit-based appeals to the Environment Court on the decisions. Appeals can only be made to the High Court on points of law.
- A party may apply to the Supreme Court for leave to bring an appeal. The Supreme Court can hear the appeal or remit it to the Court of Appeal.
5. Improving plan development and plan change processes
The Issues:
Repetitive and costly consultation processes, broad appeal rights, and time consuming reporting requirements can add tens of thousands of dollars and years to plan preparation and change processes. This can reduce the effectiveness of plans in addressing identified environmental issues and their ability to respond in a timely manner to emerging issues.
The administrative burden associated with plan preparation is a contributing factor to extra costs and time delays. Notifying parties, summarising submissions, making decisions on each submission and then ensuring each submitter has a copy of decisions made is time consuming and resource intensive.
In addition to the issue of the cost and time associated with preparing plans, land owners’ and resource users’ rights and operations could be affected by new plan rules having legal effect before they had been a chance to make submissions. Their rights needed to be balanced against a need to protect vulnerable natural resources from a ‘gold rush’ of resource consent applications trying to beat new rules coming into effect.
What the Resource Management (Simplifying and Streamlining) Amendment Act (RMAA) 2009 does:
Ability to use consultation under other legislation extended to 36 months
Councils will be able to use consultation carried out within the last 36 months under other legislation to help them meet their plan preparation obligations under the RMA. This change is designed to reduce costs, duplication of consultation processes, and ‘consultation fatigue’ (whereby those consulted lose interest in participating due to the ongoing draw on their time and resources).
Councils may combine to produce single planning documents
The provisions of the RMA are clarified so that regional councils and territorial councils can combine to produce a single document that meets the requirements of a regional policy statement, regional plan, and district plan (in any combination). Previously the RMA made provision for combined plans, but there was less flexibility in regard to the documents that could be combined.
Changes to the further submission process
The further submission process that enabled parties to support or oppose submissions on plans has been retained but only those persons who have an interest greater than the public generally are able to make further submissions. The period for making further submissions has been reduced to ten working days (two weeks).
Simplified decision reports and notices
Local authority decisions on submissions will not need to be made in respect of each individual submission but are to be grouped according to plan provision or topics. Instead of sending out lengthy decision reports to everyone who made submissions councils will only need to send a notice informing submitters that decisions have been made on submissions and where those submissions can be viewed. Submitters will be able to request copies of decisions be sent to them however.
Changed rights of appeals for decisions on plans
The RMAA 2009 explicitly states that appeals can not be made that seek the withdrawal of entire plans. Appeals can still be made that seek the withdrawal of entire plan changes or variations however. The distinction is made in recognition that plan changes often relate only to a particular area or issue (so do not affect other parts of a plan) and are sometimes used as an alternative to obtaining a resource consent.
Changes as to when rules have legal effect
Prior to the RMAA 2009, rules in plans had legal force from the time a plan was notified (unless a council had resolved to delay the legal effect of the rule until a plan is declared to be operative). This meant that rules could affect what people did with a resource or their property before they had a chance to make submissions for or against them. The RMAA 2009 delays rules from having legal effect until decisions have been made on submissions unless:
- The council has obtained an order from the Environment Court that allows a rule to have legal effect earlier; or
- The rule protects air, water, soil (for soil conservation purposes) or historic heritage; or
- The rule provides for, or protects, an aquaculture marine area.
Exceptions 1 to 3 are included to stop the so called ‘gold rush’ scenario whereby vulnerable resources or areas can be damaged or destroyed as a result of a flood of applications being lodged and granted to beat new rules coming into force.
Full plan review every 10 years no longer required
Councils are no longer required to undertake a full review of their plans every 10 years provided that the provisions within them have been the subject of a review or a plan change within the preceding 10 years. As a safeguard against councils not reviewing or changing plan provisions, the Minister for the Environment (or Minister of Conservation for regional coastal plans) has powers to order a plan to be reviewed.
6. Improving resource consent processes
The Issues:
In 2007/2008 just 69% of resource consent application where processed within statutory time limits. At the same time, the consent processing ‘clock’ was increasingly being stopped for further information requests (for 43% of applications) or legal extensions of timeframes (for 28% of applications).
The time it takes to process resource consents adds to the cost faced by applicants and can result in lost opportunities.
Factors that add to the time it takes to process resource consents include:
- duplication of some processes and information requests
- complex reporting requirements
- time being lost justifying decisions on whether to notify a consent or not
- lack of an incentive to process consents on time, or a consequence when consents are processed outside statutory timeframes.
In relation the last point, it has been found that historically only a small number of resource consents were actually notified (around 5-7%), and therefore the presumption in the RMA that consents should be notified did not reflect reality
What the Resource Management (Simplifying and Streamlining) Amendment Act (RMAA)2009 does:
Changes to notification of resource consents
There is no longer a presumption that a council must publicly notify a resource consent application. Instead a council is required to public notify a resource consent if:
- the adverse effects on the environment are, or are likely to be more than minor
- an applicant requests that the consent be notified, or
- a plan or national environment standard requires the consent to be notified
The council must not publicly notify an application if a plan rule or national environmental standard says that it is not to be notified, and the other criteria above do not apply.
Simplifying resource consent decision requirements
Council resource consent decisions are simplified by removing the need for application material to be repeated or restated in subsequent hearing reports or decision reports. This will assist reducing the administrative burden of repetitive and unnecessarily complicated assessment and reporting requirements.
Removal of blanket protection rules for trees in urban areas
The RMAA 2009 requires councils to remove rules from their plans that provide for the blanket protection of trees in urban areas by 2012. The RMAA 2009 allows for blanket protection rules for trees to remain in areas not within the definition of “urban” and in reserves and parks. The RMAA 2009 still allows for tree protection through RMA plan rules other than blanket protection rules, and protection mechanisms under other legislation.
Limits placed on councils stopping the ‘consent processing clock’
Councils can no longer stop the consent processing clock whenever they request further information from an applicant or commission a report. Instead the council can only stop the consent processing clock once before a decision in made whether to notify a resource consent or not, and once after a resource consent has been notified (if it has been notified).
The use of time extensions by councils has been tightened so that a council can only extend a timeframe up to twice the maximum period if special circumstances exist or the resource consent applicant agrees. For timeframes to be extended more than twice the applicant’s agreement must be obtained and the council must have considered the interests of those affected by the extension and its duty to avoid unreasonable delay.
Requirement of a discount policy for ‘late consents’
Councils must provide a discount on the charges they charge for processing resource consents when the consent is processed outside of the statutory timeframes specified in the RMA due to the actions of the council. The discount is to be provided in accordance with a discount policy. Councils may choose to use the default discount policy that is to be set through regulation (within nine months of the RMAA 2009 becoming law), or may set their own discount policy provided that it is more generous than the default discount policy. The purpose of the policy is to partially recompense applicants for the expenses associated with delays caused by the council, and to provide an incentive for resource consents to be processed on time.
Changes to when a hearing is considered to have been concluded
Resource consent hearings to be formally closed no later than 10 working days following completion of the resource consent applicant’s right of reply. This will reduce the delays commonly faced by all parties in getting a decision on a resource consent application.
7 – Improving national instruments
National policy statements (NPS) and national environmental standard (NES) are tools under the RMA which the Government can use to provide direction on specific national, regional or local issues. Central government guidance and direction can simplify the framework within which consent authorities make decisions by setting clear environmental thresholds and targets, and clarifying relationships between potentially competing national strategies and matters of national importance.
The Issues:
Councils potentially face significant costs to implement new national environmental standards and national policy statements. Mostly due to the plan change processes (consultation, hearings, appeals etc) necessary to give effect to national policy statements and refer to national environmental standards.
In recent years greater use has been made of NPS and NES. Experience has shown that the provisions of the Act could do with some refinement to improve the clarity and efficiency of the NPS and NES development processes. It also became apparent that amendments were required to better manage changing circumstances such as when events overtake a NPS development process or the need for a NPS is alleviated before it has come into force.
The provisions of the RMA were also unclear as to exact roles and functions of local authorities and decision makers when implementing a NES and the relationship of NES provisions to some key decision making provisions contained the RMA.
What the Resource Management (Simplifying and Streamlining) Amendment Act (RMAA) 2009 does:
New powers to suspend or cancel the NPS development process
The RMAA 2009 provides the Minister for the Environment (and Minister for Conservation in respect of the New Zealand Coastal Policy Statement) with powers to suspend, or withdraw all, or part of, a national policy statement that has already commenced at any time before it comes into force.
Inclusion of NPS into council plans made more efficient
National policy statements are now able to direct that a local authority must include specific objectives and policies in their policy statements and plans without the need for further local planning processes. This is because of the robust public process followed when developing a NPS and the overarching for plans to give effect to a NPS. Where objectives and policies are incorporated directly from the NPS there is little to be gained from councils engaging in further public submission processes. The local authority must give public notice of the amendments made within 5 working days after making them.
Similarly appeals on changes to plans and regional policy statements that are implementing objectives and policies of a national policy statement are limited to points of law only.
Clarification of roles and powers when implementing a NES
Clarification is provided that councils must have regard to the relevant provisions of a national environmental standard when making decisions on resource consents, the effect of a NES on existing resource consent applications, and that consent authorities are given an explicit ability to issue certificates of compliance where activities comply with the provisions of a NES. Councils are also given explicit roles to enforce national environmental standards.
8. Improving workability and compliance
The Issues
There is little incentive for offenders to comply with the RMA and plans when the financial gains to be made from non compliance are higher than the penalties imposed.
Maximum fines for prosecutions under the RMA were set at $200,000 in 1991 and have not been changed since the RMA came into force.
The ability of enforcement officers and local authorities to carry out their duties in ensuring compliance is currently hampered by minor technical matters and an inability to recover a substantial proportion of their costs.
Other than fines or imprisonment, another means of providing a deterrent would be review of existing consents. However, no such explicit ability for the Court to impose such penalties is currently provided by the RMA.
The RMA is an Act that binds the Crown, but Crown organisations are immune from enforcement action taken under it. This means that Crown is treated differently from companies or private individuals, and there is no deterrence (other than bad publicity) for non-compliance.
What the Resource Management (Simplifying and Streamlining) Amendment Act (RMAA) 2009 does:
Tougher penalties for offenders
The RMAA 2009 updates the fine level for natural persons (individual people) in line with the rate of inflation to increase it from $200,000 to $300,000. A new maximum fine level of $600,000 is introduced for “persons other than a natural person” (companies for example) in recognition of their greater ability to benefit from offending and ability to pay. In addition the Court is given new powers to order that resource consent conditions be reviewed where that consent is related to the offence that has been committed. A council that is ordered to review consent conditions by the Court must take into account any reasons as to why the review was ordered and may, if adverse effects continue, cancel the resource consent.
Ability to take enforcement action against the Crown
The RMAA 2009 provides Councils with an ability to take enforcement action against the Crown organisations, including seeking enforcement orders and prosecuting Crown organisations. The mechanisms to be used are similar to those already available under the Building Act 2004 and are facilitated through the Crown Organisations (Criminal Liability) Act 2002.
Improvements to enforcement processes
The RMAA 2009 provides enforcement officers with a new ability to require date of birth information from persons suspected of committing an offence. This will assist with the positive identification of offenders and the recovery of fines through the Courts. A new ability to serve enforcement documents via email is also added.
9. Streamlining Decision Making
The Issues
Applicants, submitters and decisions makers are often faced with duplication of process, costs and time delays resulting from applications having to go through a council hearing and then be re-heard again in the Environment Court, even though such an appeal was almost inevitable.
Local authority officers make around 87% of decisions on whether to grant or decline resource consent applications (generally non-notified). Independent commissioners make around 5.4 % of decisions on resource consent applications and the rest are made by elected representatives. Although only 12% of decisions on resource consents are made by elected representatives there is still concern amongst applicants about the objectivity, skills and knowledge of elected decision makers.
What the Resource Management (Simplifying and Streamlining) Amendment Act (RMAA) 2009 does:
The package of measures proposed to address these issues includes:
- Providing the ability for resource consent applicants or submitters to choose whether they have a notified application considered by elected representatives of the local authority or by one or more independent commissioners selected by the local authority from the pool of persons accredited under the “Making Good Decisions” programme. The costs being borne by the requestor.
- Providing the ability for applicants for resource consents and notices of requirement to request that their application be determined in the Environment Court without the need to first go through local authority consenting processes, provided that the local authority has first agreed. This direct referral process is complementary to the ‘proposals of national significance’ process, providing an alternative streamlined process path for those applications that may not fit the criteria of being nationally significant.
- Removing the Minister of Conservation’s powers in respect to decision making on restricted coastal activities. The Minister of Conservation has a number of other responsibilities in relation to the coastal marine area, including the approval of the New Zealand Coastal Policy Statement, approval of regional coastal plans, and has the ability to nominate a representative onto hearing panels for restricted coastal activities. Removing the decision making power for restricted coastal activities still leaves the Minister with sufficient oversight of activities in the coastal marine area through his or her other powers. The proposal would mean that the current recommendation of the hearing panel to the Minister would become the decision. The Minister would now have a right of appeal.
Last updated: 10 September 2009
