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Questions and Answers from Round One Seminars on the Resource Management (Simplifying and Streamlining) Amendment Act 2009 (RMAA09)

Topic/Theme:

General

Quality of decision making

The RMAA09 is focused on process improvements – will this result in better quality decisions?
  • The quality of decision making is expected to improve with a higher standard of applications being lodged and reduced reporting requirements leading to decisions that are easier to read. Applicants and submitters can also request independent commissioners be appointed.
  • It will take some time before improvements and the full benefits from them are realised.

Costs for councils

Where will councils be able to make cost savings and where will there be extra costs?
  • Potential cost savings for councils come from reduced reporting requirements, simplified procedures, such as electronic lodging, and increased fines to allow a greater portion of councils' costs to be recovered.
  • Councils have identified that there may be extra costs associated with pre-application engagement; the direct referral process; and the building of the discount policy into budgets. 
With the transition to more pre-application work, what are the implications on cost recovery/charging?
  • Councils may need to look at their charging policies and fee schedules to determine what, if any, costs they wish to recover for pre-application work. Some council's are already recovering such costs under s150 of the Local Government Act 2002.
  • If councils do intend to charge for pre-application work then they will need to make this explicit to applicants and potential applicants up-front.

Impact on submitters

What do the changes mean for submitters?
  • The RMAA09 confers new powers and responsibilities on submitters.
  • Submitters can request independent commissioners for resource consent hearings, but need to be aware that if the applicant has not made a similar request, then the submitters who made the request may have to pay the additional costs (s100A and 36(1)).
  • People making further submissions to proposed plans or plan changes may need to show that they are representing a relevant aspect of the public interest, or have an interest greater than the public generally, to ensure their further submission is not challenged or considered ineligible (Schedule One, clause 8).
  • Submitters and appellants to proposed plans and plan changes may also need to be aware that the topic matter for any appeals must relate back to matters they raised in submissions (Schedule One, clause 14(2)).
  • Where an application has been directed to a board of inquiry as a proposal of national significance, or to the Environment Court (including via direct referral), submitters will need to be conscious of the higher standard of evidence that may be required.
  • Greater emphasis on pre-lodgement discussion between councils and applicants should result in better quality applications. This should benefit submitters as it should provide a greater understanding of the true effects of an application at the time an application is notified. 

Impact on the Courts

What is the expected impact on the Courts likely to be with these changes?
  • The precise impact on the Courts is unknown at this stage.
  • To ensure that the Environment Court has adequate resources, the cap on the number of Environment Judges has been raised to 10 (while any number of alternate judges can be appointed).
  • A board of inquiry for proposals of national significance can also be chaired by a retired High Court Judge as an alternative to a current or former Environment Court Judge.
  • It is expected that the process for proposals of national significance will increase the workload of the Environment Court. 
  • The ability to directly refer an application to the Environment Court is not expected to result in a significant increase in the number of cases, as these applications were likely to have been heard in the Environment Court on appeal anyway. However, there may be an increase in workload associated with the Environment Court having to consider a wider range of matters than occurs when an appeal is made over a specific aspect of a council decision.

Mediation

Why do the changes not put more emphasis on mediation?
  • The RMA already provides for mediation, should councils or the Environment Court wish to use it as a way to resolve disputes or differences.  Whether or not greater use is made of mediation is a matter of practice rather than law. Making mediation compulsory would be counter-productive if parties are unwilling to take part in, or settle matters through, mediation.

Māori

Are there any changes to provisions relating to Māori?
  • Provisions that specifically refer to Māori, Māori interests or values, or the Treaty of Waitangi remain unchanged since the 2005 amendments. However, the requirement to have regard to statutory acknowledgements has been made much clearer in the provisions that relate to resource consent application notification decisions (s95E).
Is there added impetus for applicants to include cultural effects in applications?
  • There is an increased ability for plans to specify whether resource consents applications need to be notified or not. This enhances the role of plans and frontloads iwi/hapū input into the planning process, for example through the use of iwi management plans. 
  • The likelihood that RMAA09 will result in improved standards of applications should also add impetus to consider all effects, including cultural effects.

Participation

Is the Government making more money available for people to participate in the process?
  • There are funds available annually through the Ministry’s Environmental Legal Assistance fund, but there are no proposals at this stage to increase the amount of the fund. 

Education

How will the Ministry help to increase community understanding and support local government?
  • The Ministry rolled out seminars across New Zealand on RMAA09 in September and October 2009, and participated in workshops run with the New Zealand Planning Institute. In total 37 such seminars and workshops were held.
  • The Ministry has produced fact sheets on the main aspects of the reforms and is updating the range of guidance material on the Ministry for the Environment and the Quality Planning websites.

Time frames

Why were some changes made to time frames now, when it was signalled that time frames are to be amended in Phase Two?
  • Phase Two work has a workstream looking at general RMA issues (Phase Two – Generic). This workstream will look at further refining time frames under the RMA.
Do the changes mean that more limitations are being placed on being able to make submissions? Is the focus more on the applicant than the appellant?
  • The Government wants to bring a greater balance between the rights and responsibilities of applicants and those of submitters in the RMA participation processes.
  • The fundamental ability to participate remains, but the changes mean that submitters and appellants need to be involved at an earlier stage (where costs are less), rather than rely on last minute appeals.
  • While resource consent processes will be quicker, there is also greater pressure on applicants to ensure they lodge full/correct applications. Therefore, more pre-lodgement work will be required by applicants and that should assist submitters.
  • For plan preparation and change processes, the emphasis has only been changed for further submitters. This change in emphasis reinforces the role of further submissions in protecting the interests of affected parties, as opposed to any person, from matters contained in first round submissions.

Evaluation

How is the Ministry going to monitor and evaluate the changes to gauge how well they are working?
  • The Ministry will monitor council performance in response to the changes that have been made. The RMA Survey is one tool the Ministry can use. The Ministry also has a broader mandate to monitor outcomes, including public participation.
Who is accountable for evaluating whether the new notification test regarding effects is reasonable?
  • The Ministry will collect data from a range of sources (including the RMA Survey and anecdotal evidence) that will provide feedback on the effect of the changes made to notification.
  • Information that is required to monitor the effect of the RMA is supplied to the Minister for the Environment. The Minister, in consultation with Cabinet colleagues, will determine whether the provisions are working and whether the effect of those provisions is reasonable.

Trade competition

Definition

Why was trade competition not defined? Was case law considered?
  • Consideration was given to defining trade competition in the RMAA09.  However, it was considered that there is an established but evolving body of case law around trade competition where the key aspects of cases are now being expressed in a consistent manner with the Government’s policy intention.
  • A definition of trade competition could have been borrowed from case law, but would have resulted in a fixed and confined interpretation, opening up the possibility for arguments to get around the definition.
  • Relying on case law to define trade competition and the effects of trade competition has the benefits of being more flexible and adaptable to the circumstances of a particular case, while also placing greater doubt in the minds of those who engage in anti-competitive behaviour, as to whether their proposal to get around a possible definition will succeed.

Intent of new provisions

Are the new provisions an attempt to tighten up or change the existing trade competition provisions in the RMA?
  • Both.  Existing provisions around the consideration of trade competition and effects of trade competition have been made tighter. For example, when considering whether to notify or grant an application.
  • Part 11A changes the way in which other provisions may be used. For example, striking out a submission or an appeal is only one option now. Part 11A provides a new set of ‘filters’ and ‘sanctions’ that are designed to act as deterrents to anti-competitive behaviour, and a stronger ability for those disadvantaged by such behaviour to seek recourse through the Courts.

Identifying trade competitors

How will trade competitors be identified when trade competition is often masked by claimed environmental effects?
  • It will be difficult in some cases to determine whether someone is a trade competitor, and it will take a while to determine how the provisions will work in practice. 
  • The person needs to be directly affected before they can make a submission.  Direct environmental effects are not trade competition effects. The RMAA09 explicitly states that a trade competitor can still make a submission if they are affected by an environmental effect and their submission does not relate to trade competition. A similar mechanism relates to appeals, although the main consideration is the purpose for which the appeal is being lodged.
  • Case law will provide guidance on how the trade competition provisions apply in practice.

Relationship with competition for natural resources

Do the trade competition provisions extend to competition over natural resources (eg, water takes)?
  • The trade competition provisions are not intended to deal with natural resource allocation issues. This is a Phase Two matter.

Retrospective

Is the amendment retrospective for trade competition changes?
  • No, with a few of exceptions, all processes or proceedings which began before 1 October 2009 will continue through to their logical conclusion as though the RMAA09 was not in force.

Striking out submissions

Does the submission ‘filter’ allow councils and the Environment Court to strike out submissions?
  • The ability to strike out submissions is retained. An explicit reference to trade competition was not considered necessary for submissions at the council level, as case law has demonstrated that trade competition objections can be considered to be an abuse of process (which is grounds for a strike out).
Why have ‘filters’ at both the submission and appeal stage?
  • Trade competition may first be encountered at the submission stage, or may not be evident until an appeal has been lodged. Ideally, trade competition needs to be filtered out at the earliest stage, but this is not always possible.
  • There is also a filter for third parties under s274 to stop trade competitors joining and taking advantage of proceedings initiated by others.

Surrogacy

Do the changes to surrogacy only apply to trade competition and how will the sanctions on surrogates work in practice?
  • Yes. The obligation rests on the third party to declare whether it has ‘knowingly’ received direct or indirect help to bring an appeal, or become a party to an appeal, from a trade competitor. Where the matter is suspected or suggested, the Environment Court could ask the third party to make a statement, or to disclose any assistance it has received.
Who do the surrogacy provisions relate to? 
  • Surrogacy provisions relate to any person (Person C) who can be an individual or an organisation or group.  The key is whether they ‘knowingly’ accepted direct or indirect help from another party who is a trade competitor of the applicant (s308E and F).

Use of appeals

Are trade competitors still likely to appeal any decision to slow processes?
  • Potentially, therefore hearing panels must get a lot stricter in using the powers they have. The reinstatement of security for costs and potential for an award of damages may dissuade some trade competitors.

Representation at proceedings (section 274)

Role of the Attorney General

What role does the Attorney General have and what happens if the Attorney General refuses to engage?
  • The Attorney General is able to represent a relevant aspect of the public interest (s274(1)(d)). Ultimately it is up to the Attorney General as to whether or not he/she takes part in the proceedings. If not, then other parties can take part in proceedings if they have made a submission, or if they have an interest that is greater than the public generally.

Environment Court costs

Costs and participation

Will the fear of costs awarded by the Environment Court restrict community participation in RMA processes?

Consent processes

S37

Is there a time frame for a s37 time extension to be agreed to by the applicant?
  • No, but it is in the applicant’s best interests to make a quick decision.

S92

Will the ability to request further information under s92 only once for non-notified applications lead to bad decisions and declines, increased objections about rejections of applications under s88(3), and refunds?
  • Councils will need to make clear and concise decisions about what is adequate under s88(3) to ensure quality applications are received and there will need to be a greater emphasis on pre-application discussions.
  • Councils will also need to co-ordinate their s92 requests to avoid multiple requests from different parts of council.
  • Councils can still request further information more than once, but the clock will not stop. 
  • Councils can also use s37 to extend time frames in special circumstances and with the applicant’s agreement.
Will more guidance be produced on how councils approach s92 and the ability to stop the clock?
  • Over time, the practice for requesting further information by some councils has become less formal. However, RMAA09 has strengthened the process.  If a council is only able to stop the clock once before notification, it will expect to receive a higher quality application.
  • It is envisaged that there will be greater use of the pre-application process to identify information needs. 
  • A better quality application will also have benefits for submitters and affected parties.
  • Councils will need to be organised and able to consult with all relevant parts of the council to determine whether further information is required, and to co-ordinate one further information request. 
  • The Ministry is currently updating all of its written guidance including the QP guidance notes which address particular aspects of the consent process including s92 further information requests.
What is a reasonable time frame to get a s92 letter?
  • Ten working days would be reasonable, rather than waiting until day 19. The challenge for councils is that different parts of the council may need to assess the application.
What happens if council does not have enough information to make the notification decision?
  • A council would have to, in vetting the application as soon as it is lodged, ensure that there was enough information to notify rather than rely on s92. If not, the council can reject the application under s88(3). The five days in which to do this could be extended under s37 for large or complex applications.

S95 – Notification

S95A(1) states that the council may “in its discretion” decide whether to publicly notify an application.  What does this mean?
  • This provision establishes a neutral starting point for the council decisions that follow. It replaces the presumption of notification under former s93 ("A consent authority must notify an application..."). The following clauses then indicate that while a council has discretion, that discretion is not unfettered, but operates within the framework that follows.
Will the increase in the notification thresholds lead to a decrease in notification?
  • The changes may result in less public notification due to the increased thresholds, but it is likely that there will be more limited notification given there is now a clearer distinction between limited and public notification.
Is limited notification defined in the RMA?
  • Yes, limited notification is defined in s2AA(2) (Definitions relating to notification) and the process for determining limited notification is set out in ss95 and 95B.
What is the difference between full and limited notification with respect to affected persons (s95A-F)?
  • Full notification is required if the effects are more than minor (disregard effects on the site and adjacent owners/occupiers).
  • Limited notification is required if the effects on any person are more than minor (disregard effects on those who have given approval).
How do you avoid predetermination and bias in council decisions on notification where the effects are more than minor?
  • The test is similar to the discretion that councils apply now – review and appeal processes are provided to check the quality of the decisions being made.
Are there any thoughts on the ‘more than minor’ test?
  • It is generally clear whether the council is going to notify an application or not.  There are only a small number of applications where it is unclear (and it is unlikely that this will change). There will need to be more engagement with applicants about notification and councils will need to be clear about what they consider is more than/less than minor.
  • Case law will also likely develop in time.
With respect to notification, why was the change made from “may” to “will have or is likely to have?
  • The wording originally proposed was considered too weak. The Government wanted to strengthen and move away from arguments over minor effects that have no substantial bearing on the process. The intention is to move from considering a possibility to a probability.
Are the non-notification and non-service clauses in district plans still applicable?
  • Yes. They still stand unless special circumstances apply, a national environmental standard (NES) has specified notification (as the NES overrides the plan), or an applicant has refused to provide information or does not meet the time frame in response to a further information request (s95C(1)).
Section 95A(2) and (3) are clear enough, however subsection (4) seems to negate the "must not" in (3). Is this the intention?
  • Subsection (4) is intended to negate subsection (3). The wording confirms that special circumstances always trump other notification provisions.
If there is no presumption of notification, how will iwi/hapu be affected?
  • All resource consent applications are still considered within the context of Part II of the RMA. Part II has not been altered by the RMAA09 (such that the relationship of Māori with their ancestral land, water, sites and wāhi tapu, kaitiakitanga, and the principles of the Treaty of Waitangi remain as relevant now as they were before the RMAA09).
  • Where effects on the environment are more than minor consent applications will still be publicly notified. Depending on what arrangement a council has in place for public notification, iwi or hapū may receive notice of an application directly.
  • If iwi or hapū are an affected party then their written approval will still be necessary if an application is not to be limited notified and served on that iwi or hapū.

Section 95C

Section 95C demands notification if a s92 further information request is not responded to or the information is deficient. What happens if a council notifies an application but the costs fall to the council because the applicant refuses to pay?
It has been suggested that if a notification deposit is not paid a council could invoke s36(7) and not proceed. But 95C requires notification, so the costs of that could in any case fall to councils?
  • Councils would not have to notify if they have not received the deposit fee. This is a legal issue about the priority of s36(7) over s95C. Note that if a council has already decided not to notify, then the provisions of s95C(1(a)) may apply. This appears to provide an option via “it has not already decided whether…” that a council may not need to notify if it has already decided not to.

Section 95D

Can trade competition be used as a reason for stating that it is unreasonable to obtain written approval?
  • Section 95D(d) indicates that the effects of trade competition must be disregarded when deciding whether an activity will have, or is likely to have, adverse effects. So unless there were other effects, they would not be considered an affected person.

Sections 95D and E

Section 95D lists criteria for deciding whether effects are likely to be more than minor and s95E for deciding whether a person is affected.  What is the meaning/intention of s95D(a) and its relationship with s95E?
  • Section 95D tests adverse effects for the purposes of a decision on public notification. Therefore, it excludes those who would be considered affected parties under s95E.

Determining affected parties

In determining affected parties, are only immediately adjacent property owners considered? What about parties using a shared right-of-way for example?
  • The effects on persons who own or occupy adjacent sites are disregarded in respect to public notification decisions only (s95D(a)).
  • When considering limited notification, the effects on persons who own or occupy adjacent sites needs to be considered.
  • It is at councils discretion to determine which sites are deemed to be adjacent and which parties are affected.  Parties using a shared right-of-way may be deemed to be affected, however a decision would need to be made by the relevant council on a case by case basis.
What happens if all potentially affected parties can not be identified?
  • This would suggest that the effects are wide ranging (beyond adjacent land where the owners and occupiers are more likely to be known), and are therefore likely to be more than minor, so public notification is likely to be required. Also note that a person must not be regarded as an affected person if it is unreasonable to seek their written approval.
What is the difference between interested and affected parties?
  • The difference is the separation of tests for notification. Interested parties will still have the ability to have their say if the application is publicly notified. The limitations will occur more at the end of the process. It is expected that many of the definitions will be determined through the Courts.

Special circumstances

What constitutes “special circumstances”?
  • The words “special circumstances” existed in the RMA before RMAA09 so there is existing case law around the term.
  • The Court of Appeal (Judge McMullin for example) has described special circumstances as being “unusual or exceptional but not necessarily unique”. No further specificity has been added because special circumstances are difficult to predict, and are likely to vary from one situation to the next (ie, there is no special formula that can be applied).
Do you envisage any other kind of special circumstances other than those already defined by case law?
  • Possibly new technology employed by a factory where the effects are unknown. This was an example used by the Select Committee.

Closing hearings

If a hearing is adjourned does this affect the 10 working day decision time frame?

No, 10 working days applies from after the applicant’s final right of reply (be it written or oral). Ideally there should be no adjournment after the applicant’s final right of reply, as it was this type of behaviour the amendment was trying to address.

What if an applicant does not want to exercise their right of reply?
  • The hearing is simply closed.
Will the closing of hearings within 10 working days present practical difficulties? For example, scheduling a site visit can take time following the close of the hearing.
  • The time frame will be tight in some cases. The onus will be on councils to be organised, to conduct a site visit, and take any other steps required before the final right of reply.

Strike out provisions

Is there any provision available to deter vexatious submitters in the early stages?
  • The strike out provisions are still in the RMA.  S41C(7) allows councils to strike out submissions in whole or in part if considered frivolous or vexatious, although in practice it is often easier for a council to leave the submission in and disregard it at the decision stage if it is considered irrelevant.
How is frivolous and vexatious defined?
  • Substantial case law has accumulated to date. It is a matter for the Courts/council to decide on a case-by-case basis.

Discount policy

What consultation will there be with councils in developing the discount policy?
  • S36AA makes it mandatory to consult with councils when the regulation is developed. 
How will councils recover costs for discounts – by increasing their consent fees?
  • Councils may attempt to increase their current consent fees and charges to compensate for discounts. This will need to be considered when formulating the discount policy regulation. 
  • The discount policy is also a strong incentive for councils to only accept complete and good quality applications.
If the applicant has to give approval for a s37 time extension, are they still eligible to get a discount?
  • The discount is intended to apply when a consent is processed outside of statutory time limits. Section 37 is used to extend time frames, so a consent is not in breach of these time frames. 
  • In some cases the use of s37 or s37A will be at the request of the applicant or another party. Whether or not the use of s37 is because of the actions of the council, requiring a discount to be paid to the applicant, is yet to be worked through in the proposed discount policy to be drafted in accordance with s36AA.
If a council requests a s37 time extension, what applicant would agree to this extension if they know they can get a refund back from the council for late processing?
  • This is something that will need to be considered when drafting the discount policy regulations.
Will the discount policy take into account the difficulties for some councils, such as staff resourcing and the need to use external consultants and scheduling hearings, and the effects on compliance with time frames?
  • The discount policy regulation has not yet been developed and we are not aware of any detail. The policy may reflect these issues.
  • If consultants are used it is still a council’s ultimate responsibility to meet the time frames. This will prompt the need for clear contractor agreements to be established. There may be scope for a council to structure agreements with consultants to have penalties apply to them if their processing is delayed or late.
The ability to meet the 20 working day time frame largely depends on the complexity of the application.  How will this be reflected in the policy?
  • What constitutes councils’ responsibility is yet to be scoped. The amendments will put pressure on councils to only accept complete applications (s88(3)). S37 can also be used by councils with the applicant’s agreement and/or if special circumstances exist. It could be beneficial for the applicant to agree to a s37 extension to ensure the council gets it right.
When would a council not be responsible for late consents with respect to the discount policy?
  • The council would not be responsible if the applicant has done something to cause the delay. S36AA requires the Minister for the Environment to consult with councils so this issue will be addressed in the regulation.
Will the discount policy make the process the domain of experts and impact more on laypersons applying for resource consent?
  • The discount policy regulation has yet to be worked through. However, there is a need for dialogue between the applicant and council before lodging the application. It is also important to remember that it only applies if the fault is the council’s.
How will the discount policy achieve the outcome intended when consent fees are relatively small change in relation to larger applications?

  • How the policy applies to different scales and complexity of applications will need to be considered and the effectiveness of the ultimate policy will only be known in time.

Decisions

How can people review and challenge decisions if there is a lack of detail in the decision?
  • In reality there is not a big difference from the existing situation. Full decisions can still be obtained from the council.
Isn’t there a bias towards the applicant with the ability to include information from an applicant’s assessment of environmental effects in the planning report?
  • The amendments do not remove council’s role to objectively assess the information. They are not simply taking an applicant’s point of view. The intention is for the AEE to be adopted in whole or in part only where the council officer agrees with it and to save time in preparing reports.

Direct referral

Requests

Who can request direct referral?
  • Only the applicant can request direct referral. The council makes the decision on the request for direct referral and can decide to either grant or refuse the request.

Plan changes

Why does direct referral not apply to plan changes?
  • The policy decisions around plan changes sit better with councils than the Court.

Decisions

Is there anything to guide the council in making a decision on direct referral? 
  • There is no guidance in the RMA. It has been left open for councils to decide and set out the reasons for the decision. 
Who in council makes the decision on direct referral?
  • Councils will have to update their delegation manuals. Because of the time frames it may be necessary for others, in addition to councillors, to have the ability to make this decision.
It is difficult to see when the council will decline a direct referral request. When is it envisaged that a council would decline an application for direct referral? 
  • One scenario when a council may decline the request is where there is considerable community/local interest in an application, and the council considers that community input is especially critical at a council decision-making level. If such applications are directly referred, some potential submitters may drop off if they do not want to go through the Court process.

Council report

Is it correct that a council’s direct referral report can include conditions but not a recommendation?
  • Yes, a council may choose to include recommended conditions but is not able to make a recommendation as to the decision.

Objections to decisions

Are objections to a direct referral being declined heard by the council itself?
  • Yes, there is a right of objection to the council (as there are with other council decisions). There is no appeal to the Environment Court as this would defeat the streamlining and simplifying purpose of the provisions.

Time frames

What are the statutory time frames associated with direct referral?
  • The processing clock stops for councils to make their decision on direct referrals within 15 working days. Councils are not responsible for the time frame outside the council process once the application is lodged with the Environment Court.
  • Refer to the diagram within Fact Sheet 4 prepared by the Ministry which outlines the time frames associated with direct referral.

Costs

Can a council recover its costs?
  • Yes, a council can recover costs up to the point that the application is transferred to the Court, following the notice of motion being lodged with the Court. Once at the Court, costs are unlikely to be recoverable because this could only happen under s285. There are likely to be cost implications to councils, such as appearing at Court and the writing of reports for the Court.
Will the cost and formality of the Court process put submitters off?
  • Submitters may be more hesitant to be involved in formal Court processes. However written submissions are still taken into account by the Court and it may prompt submitters to band together and present joint submissions and possibly have combined legal representation.

Submitters

Will submitters likely approach council’s and ask them to submit for them given the burden on the submitter is greater?
  • Yes, this could happen. Alternatively, submitters may combine their resources and file a joint submission to reduce costs to each individual.
Are submitters protected from cost awards?
  • Yes the process is based on sS274(1). Submitters are a party not appellants and there is a presumption that they do not pay costs under s285(5)(a)(i).
If the council is a submitter under s274 what status do they have?

  • Every submitter has equal standing regardless if they are the council or not.

Environment Court

Who prepares the notice of motion to be lodged with the Environment Court?
  • The applicant prepares the notice of motion.
What are the obligations on the Environment Court to make timely decisions?
  • It is expected that the Court will act promptly and avoid any unreasonable delay. The cap on Environment Judges has been lifted in the RMAA09 and this will enable two extra Judges to be appointed. It is difficult to predict at this stage what the demand for direct referral will be, but it is likely that these are matters that would have ended up at the Environment Court on appeal in any case, so the Court would still have been required to deal with these applications at a later stage. 

Independent Commissioners

Independent commissioners and elected members

Section 100A(4) states that if a council receives a request from an applicant or submitter it must delegate its functions, duties, and powers to hear and decide an application to one or more hearings commissioners that are not members of the local authority.  Does a council have to delegate the hearing and decision making to only commissioner/s or can a council appoint a mix of commissioners and elected members of the council?
  • If requested, the council must appoint one or more independent hearing commissioner(s) who are not members of the council. It was intended that this would be an exclusive delegation to independent commissioners and that the council would have the discretion to decide on the number of commissioners. 
Can elected members be independent commissioners?
  • The RMA makes a distinction between elected members and non-elected members. The wording of the sections where these terms are used implicitly implies that elected members of the council can not be independent commissioners.

Requests

Is it likely that most applicants will ask for independent commissioners?
  • It is expected that people will largely follow the existing decision-making arrangement that their council(s) generally employ for the short term, and may use independent commissioners cautiously due to the actual or perceived additional costs.
Is there an ability to request particular independent commissioners or request that particular commissioner(s) not be used?
  • It can be requested but the council has the ultimate discretion to decide who and how many commissioners are appointed.

Māori representation

With the ability to request independent commissioners, will councils have processes to ensure Māori will be able to be represented?
  • It is up to the council to decide who those commissioners will be and the composition. It is often dependent on whether specialist knowledge is required.

Skills

How will councils ensure that commissioners have the right skills for specific applications?
  • The same process will apply. The council can appoint specific commissioners with specific technical skills (including Māori commissioners).

Panel size

Are there any ideas regarding the likely size of panels?
  • It is up to council to determine the numbers depending on the application before them and the required expertise.

Restricted coastal activities

Does s100A apply to applications for restricted coastal activities (RCAs)?
  • No, s117(6) explicitly states that s100A is not to apply to RCAs.

Costs

What happens in terms of costs if a submitter wants an independent commissioner and others do not?
  • Only the submitter who requested the independent commissioner pays.
Submitters can request independent commissioners, but can councils take a deposit/security to ensure these costs are met?
  • No, councils would need to recover the costs as a debt through the usual means.
  • It will be important for councils to sort out their financial systems and make their charging regime clear to submitters before confirming the use of independent commissioners.
  • Councils also have discretion to waive fees and charges. If they choose not to waive fees or charges, and the hearing has already gone ahead with independent commissioners, then the submitters would be treated like any other debtor.
Do you agree that we are likely to see a waiting game played as submitters wait to see if others will request a commissioner so they do not have to bear the costs?
  • There is a hypothetical possibility of this happening, but it may be a risky strategy as they may not necessarily know that other submitters have made such a request until after the window for making the request has closed.
Do you think councils will still appoint independent commissioners informally if they know they can charge for it if an applicant/submitter requests it?
  • There will be certain conditions on when councils would make this decision. Generally, we believe that councils will stick to their agreed delegations and the way they do things. It is likely to require more discussions between councils and applicants.

Restricted coastal activities (RCAs)

Notification

Are RCAs still required to be notified?
  • Yes. The only change is that the Minister of Conservation no longer makes decisions on RCAs.
Minister of Conservation representative

Will the Minister of Conservation still have a representative at the hearings committee?

  • Yes, and the Minister also has the ability to appeal decisions on RCAs.

Plan development and change processes

Cross boundary issues

Why was joint planning for cross boundary issues not made compulsory?
  • The Government wants to encourage its use but has not made it compulsory as yet. South Wairarapa is an experimental situation at this stage. 

Consultation

If you have a concession under the Conservation Act, does consultation associated with that Act apply?
  • Yes, consultation under other Acts is provided for.
Will long term council community plan consultation take on more weighting/emphasis than RMA consultation requirements?
  • Not necessarily, but it allows councils to better target consultation. Councils will also need to go through specific Local Government Act s83 processes if the council is to develop their own charging policy.

Combined plans

Will councils take up the challenge to produce combined plans? 
  • There will be political decisions involved and the political relationships will need to be right to enable a combined approach. Auckland may provide a test case of this provision.

Plan change

If a plan change is just a minor tweak does this constitute a plan change or review under s79?
  • Yes, a plan change no matter how large or small is still a plan change if it has gone through the Schedule One processes.

Legal effect of rules

The exemptions to the legal effect of rules include water – does this include coastal water?
  • Yes, the definition of water in the RMA includes coastal water. However, also note the exclusion related to rules that provide for, or relate to, aquaculture management areas (s86B(3)(e)).
Is it a council decision about which rules have immediate effect when the rules affect air, water or soil?  Does this also apply to prohibited activities?
  • Yes, in the first instance it is the council who decides which rules fit in and outside the exceptions relating to air, water and soil having regard to the provisions of s86B-E. 
  • The Court may decide if a rule has legal effect earlier under s86D, if a council makes an application for a rule it considers does not meet the exceptions under s86B(3) to apply earlier.
  • Sections 86B-F apply to rules generally, so would include those relating to prohibited activities.
Are planning maps rules? Would an extension to a zone be considered to be a new rule?
  • There is case law to suggest that planning maps themselves are more of a policy or method than a rule (Wilkinson v Hurunui DC, 2000).However, the rules that zoning provides for might be considered new to that area of land and would therefore run counter to the intent of Amendment if deemed to have force immediately. The effect would therefore be that the maps would be an indication of proposed change in rules that are to apply to the area but those rules may not actually have legal weight until decisions have been made on submissions. This approach would also be consistent with the general case law on weighting of proposed plan provisions.
If a council notifies some new subdivision rules for example, when do they have effect?
  • Previously they had effect when notified, but now they have effect once a decision has been made by the council, unless the council seeks a Court order for the rules to take effect earlier.
Will rules have legal effect if they are under appeal (s86)?
  • If the rule has passed the decisions on the submission stage, yes the rule will have some legal weighting. It is intended that the weighting would be to the same degree as proposed rules that had been subject to appeal before the RMAA09.
Under s86, rules in a proposed plan have immediate effect if they protect significant indigenous vegetation.  Do trees fall into that category?
  • It would depend on the type of tree.  An area of significant indigenous vegetation in an urban environment (if they are not already in a reserve) are likely to be the types of trees that a council will want to identify in their plan to ensure protection and therefore may fall into this category. It will therefore depend on the trees and their location.
If a council proposes a rule which has immediate effect under s86 and the council instructs an applicant to apply for resource consent, but in the fullness of time the council decides to remove the rule – what is the status of the resource consent that may have been granted or may still be in process?
  • A consent that had been granted would still be valid even if the rules had changed. For consents that are still being considered, a change in a rule or the revocation of a rule may mean that the application needs to be revisited or reconsidered. In this instance the applicant should contact the council to discuss.

Further submissions

Who can make a further submission?
  • Persons representing a relevant aspect of the public interest, persons with an interest greater than the general public, and the council.
Where did the phrase “person with an interest greater than the public generally” come from?
  • The phrase comes from s274 and the case law associated with that section. It was intended that the case law associated with the pre-amendment s274 can be used as a guide to interpreting the newly worded provision.
If the council does not allow a further submission what is the process for challenging this?
  • To date councils have generally adopted a conservative approach in allowing most further submissions. However, a person whose further submission is excluded could either informally take up the issue directly with the council, or could seek a judicial review of a council decision to exclude a further submission. 
  • Further submitters may be wise to set out their reasoning why they consider they are representing a relevant aspect of the public interest, or why they consider they have an interest greater than the general public.
What effect do the changes to the further submission process have for plans?
  • The ability to make further submissions has been narrowed so that further submitters have to show that they have reasoning based on an interest of their own that is greater than the public generally, or that they are representing a relevant aspect of the public interest.
  • It is intended that these changes will reduce the total number of further submissions by lessening behaviours that see further submissions as a voting exercise by some people, and concentrating submissions on the merits of matters contained in the plan or first round submissions. 

Trees – urban environment

Section 76(4B) contains a new definition of “urban environment”. In urban areas there are many areas where both a fully reticulated water and sewerage system is not available and areas which rely on roof water, which are excluded from the definition.  Was that really the intention?
  • The wording of the definition of urban environment was intentionally designed to exclude areas that are not fully serviced. This is because the intent was to only revoke blanket protection rules from highly urbanised areas, where there are few options available to re-site buildings to avoid trees. In the main, such areas are fully serviced and generally have some sort of building already on them. The provisions were not intended to apply to small settlements or undeveloped land where the development pressures were not so great, or where there were greater options for building placement.
Do all of the factors which define an “urban environment” need to be met to qualify?
  • Yes, all the factors in s76(4B) will need to be met.
Is the definition of urban environment going to be defined any further?  For example, what constitutes being built on? 
  • There is no intention to develop the definition any further at this stage. The definition refers to a building used for industrial or commercial purposes, or a dwelling house. 
  • Councils may choose to look at factors such as whether the building is a building under the Building Act, and their own plan definitions of what is a commercial or industrial activity, or dwelling house. Where such definitions are absent, a common sense approach would be to apply a common use interpretation of the terms.
Does urban environment just mean residential or does it apply to industrial or commercial areas if they meet the definition?
  • The urban environment definition refers to an allotment on which a building is used for industrial or commercial purposes, or a dwelling house.
What trees in urban environments are protected?
  • Those specifically identified by the council in their plan, or those in a reserve or an area subject to a conservation management area. The RMAA09 does not rule out the protection of trees through means other than RMA mechanisms.

Trees - rural

Are blanket tree protection rules still possible in rural areas?
  • Yes.  The removal of blanket tree protection rules only apply to urban environments as defined in the RMA.

Trees - Trimming

Is the “trimming'” of trees in urban environments now permitted?
  •  Yes, as of 1 October 2009 a rule in a plan must not prohibit or restrict the trimming of any tree or group of trees in an urban environment. However, the revoking of rules relating to trimming does not apply to trees specifically identified in the plan, or located in a reserve, or subject to a conservation management plan/strategy (S76(4A)).
  • Tree rules that protect a tree from other works aside from trimming (ie, damage, removal or felling) will not be revoked until 1 January 2012, by which time the council can protect trees by identifying them in the plan.
Is the Government going to give guidance on what constitutes “trimming”?
  • No.  It is considered that this is a matter that can be sorted out by councils and that a definition is not required.  A definition may also emerge through case law, which is likely to into account the extent (does it cause irreparable damage, or death), intent, and the way the work is carried out.  Some councils in the Auckland region have developed a definition of trimming, which may be useful as a reference.

Mangroves

Are mangroves trees?
  • The RMA does not define trees. Some plans do have their own definition of a tree and councils may need to have a look at those definitions in light of the RMAA09.
  • It is possible that the location of mangroves may not qualify them as being in an urban environment in many cases (lot sizes below 4,000 sq metres, built on and services by reticulated water and sewerage), so the revocation of rules required by the RMAA09 may not apply often to mangroves.

National instruments

Councils

What happens if councils do not endorse a national environmental standard (NES) (s84 not amended which excludes councils need to comply with NES)?
  • Section 44A requires councils to observe and enforce NES.  Section 25 could also be employed whereby the Minister can step in. 

Example of NES

Can you give an example of NES that councils administer?
  • Two examples include the air quality NES and telecommunications NES.

Function of NES

NES have too much power and override council processes and there is less opportunity for public participation. Why do we continue with these NES? 
  • NES are to provide consistency at a national level. NES does have a process of consultation, although it is less prescribed than the NPS process.

Maximum/Minimum

With respect to NESs, is there a minimum or maximum that councils have to apply?
  • That depends on the NES as they differ.  Some NES set minimums and others set maximums.

Proposals of national significance/Environmental Protection Authority (EPA)

Form of the EPA

What is the makeup of the EPA?
  • The EPA is a relatively small team which sits within MfE.  The Secretary for the Environment delegates to this team.  The EPA team will project manage applications of national significance and draw on internal and external RMA expertise.  
  • The Minister makes the decision as to whether the Environment Court or a board of inquiry will decide on an application, and the ultimate decision on an application is made by the Environment Court or board of inquiry.

Part Two of the RMA

Do the Part Two principles of the RMA also underpin the EPA?
  • Yes. Part Two of the RMA sets out the overall purpose and principles for the RMA. The EPA has been created through the RMA and as there is no exclusion to say otherwise, will be bound by the same duties and responsibilities other decision makers are under Part Two.

Use of the EPA

What will give people confidence about using the EPA as there are risks and uncertainties?
  • The new procedures build on the existing call-in process, and the Ministry has developed expertise in this area over the past few years as applications have been called in. The EPA will be working closely with councils in the first instance.

National significance

At what stage during the decision-making process is an application identified as being ‘nationally significant’?
  • The applicant has its own views and will submit an application justifying why it is considered nationally significant. 
  • The application will then be screened by the EPA and a recommendation will be made to the Minister. The Minister makes the ultimate decision as to whether the application is nationally significant.
Certain roads have been declared to be of national significance – does this mean that these are likely to be called in? 
  • The Minister has wide discretion over what can be called in. The fact that these roads have been declared to be of national significance by New Zealand Transport Agency does suggest that they will likely be considered as candidates for call in. However, the Minister must make decisions on proposals of national significance on a case-by-case basis.

Time frames

Is there a time limit on the Minister making a decision on a recommendation about whether an application for a proposal of national significance should be referred to a board of inquiry or the Environment Court for a decision?
  • There is no time limit on the Minister specified in the RMA; however the Minister is under a statutory duty to avoid any unreasonable delay and to act as promptly as is reasonable in the circumstances.
What is the time frame applicable to the EPA in accepting applications?
  • In terms of resource consents it is five working days (s88 applies), which is part of the 20 working days within which a recommendation needs to be made to the Minister.  No time frame applies to plan changes and notices of requirement apart from the 20 working days within which to make a recommendation.

Council’s role

Is it mandatory for applicants to work with the councils for proposals of national significance?
  • It is not mandatory, but applicants would be wise to do so. The EPA will rely on liaison with local councils to assist in various roles.
In a call-in process the council is commissioned to provide a report of the key planning issues. Are they also required to appear before the board of inquiry? 
  • The role of the council is to provide the report but it does not extend to appearing. However, a council could choose to become a submitter on the proposal when it is notified.  
  • The cost of preparing the report will be recoverable, but if the council chooses to become a submitter, those costs would not. If the EPA or the board of inquiry chooses to commission further information from the council, then these council costs would be met (and recovered from the applicant).
How will the EPA work with councils in practice? 
  • The EPA will seek to work closely with councils and is currently developing a formal means of engaging with councils, both pre- and post-application. 
  • The EPA expects to draw on the expert knowledge of the council particularly in relation to the council’s plan and the potential local impacts of the proposal. Furthermore, the EPA will seek to ensure the council’s views on whether the matter should be referred to a board of inquiry or the Environment Court are presented to the Minister. 
  • Nationally significant applications have community outcomes so it is in the interests of the council to be involved.
Can a council still be a submitter in the EPA process, and do they still need to produce a report?
  • Councils can be both a submitter and produce a report for the board of inquiry or Environment Court.  Councils will need to clearly define internal roles to avoid conflicts of interest. It also will need to be made clear in any hearing what role a particular person from the council is playing (submitter or witness) and that there is a clear separation from other council roles. For example, the council could use external consultants for the reporting process, and use elected representatives to present submissions.
Is there a conflict between the council role as a possible submitter and nominating members for the board of inquiry?
  • While the Minister must seek suggestions from the local authority, he is not required to appoint the persons suggested. The RMA requires the Minister to have regard to the need for members of the board to have the required knowledge, skill and experience, including relating to the local community. The Minister will be looking for local technical expertise and not a council representative as such. Board members must be neutral and not have an interest or preconceived view or position on the matter before it. 

Council cost recovery

If a council is a submitter, can the council recover costs?
  • Councils can recover actual and reasonable costs of their involvement with the process, but this does not extend to time/costs associated with making submissions or appeals.
How are councils to recover costs for administering resource consent conditions that they did not impose?
  • The council has responsibility for residual functions as though it granted the consent itself, ie, monitoring and enforcement. 
  • Depending on the wording and nature of the conditions, the council may be able to use the same mechanisms it employs for recovering costs from any other consent it grants.
  • The Council can make submissions suggesting conditions (should the consent be granted) if it chooses to, or could include suggested conditions in any report that it is commissioned to prepare in its advisory role.

Submitter and  wider involvement in process

Is a submitter able to request an application to be called in?
  • There is no direct ability for a submitter to request a call in. However, any person is able to write to the Minister requesting a call-in.  The Minister will consult with applicants and councils before making a decision.
Can people from outside the area of the application be involved in the EPA process?
  • Yes, the projects are nationally significant and therefore allow for wide involvement.
  • Notification by the EPA is a public process.

Board of inquiry

How is a board of inquiry made up and who decides the composition of the board?
  • Section 149K provides the detail. A board is appointed by the Minister for each application, and therefore can change in makeup each time. The council can make suggestions regarding a local representative. The Minister must appoint between 3 to 5 persons to be on the board (s149J), and the board is to be chaired by a former or current Environment Court or retired High Court Judge.
  • The Minister must have regard to the needs of the board in terms of knowledge of the RMA, the technical issues likely to be raised, local knowledge and tikanga Māori.
What is the main difference between the board of inquiry and Environment Court processes?
  • There are no criteria for which way an application goes. There are time frames for a board of inquiry but no time frames for an Environment Court decision.

Appeals

Can the final decision be appealed?
  • Yes, but only on points of law. Appeals are to the High Court and then the Supreme Court (if leave has been obtained). If leave of the Supreme Court has not been obtained, then the Supreme Court may remit the matter to the Court of Appeal if special circumstances exist.

Enforcement

Infringement fees

Is there a proposal to change infringement fees?
  • This was considered during Phase One but required additional work in regard to levels, and possible changes to regulations. It may be part of Phase Two.

Fines

Why have fines been increased substantially?
  • The RMAA09 adjusts fines for individuals to take into account inflation. The fines set under the RMA had not been adjusted since 1991, so their deterrent effect has progressively eroded over that time.
  • In regard to the $600,000 maximum fine for others as opposed to the $300,000 maximum for individuals or natural persons, it was considered that a split approach was appropriate to reflect differences in motive, benefit, and the ability to pay that businesses or other large groups have when compared to an individual.
Will the Environment Court apply greater fines?
  • We cannot predict this. It will depend on whether, and how, the Environment Court interprets the increase in maximum fine levels and circumstances of particular cases.

Natural persons or others

Are non-profit organisations, trusts and iwi/hapū considered as natural persons or others?
  • Others. Natural person generally relates to an individual rather than a group of people.
Are “natural persons” able to apply for consents to be reviewed?
  • Any person can pursue a prosecution, but the decision in regard to ordering a review of a resource consent (should a prosecution be successful) rests with the Court.

Court order – review consent

When can an Environment Court Order be used to review a resource consent?
  • There are no criteria set out in the RMAA09, but it was intended that a Court could order the review of resource consent conditions where:
    • the offender has committed multiple breaches of the consent (including repeated breaches)
    • the effects of the offence means that some consent conditions are no longer relevant or capable of being complied with
    • the Court envisages stronger conditions need to be placed on a consent to reduce the possibility of future offending, or address environmental damage associated with the offending.

Court order – cancel consent

Who has the ability to cancel a consent?
  • The Court can order a review of the consent if the offence contravened the consent. The council, having regard to any reasons provided by the Court for ordering the review of the consent conditions, may cancel the consent if there are ongoing adverse effects. The applicant can appeal the decision of the council as the review mechanism is the same as for resource consents generally.
If a consent is cancelled, can an applicant reapply?
  • Yes, and their application will be considered on its merits.

Environment Court filing fee

Are there any exemptions (particularly for iwi/hapū) to the increase in the Environment Court filing fee for appeals?
  • Yes. The Environment Court can waive the fee if it considers it appropriate.
  • The fee applies only to initiating appeal proceedings, not to filing other matters with the Court or for joining proceedings.

Crown immunity

What is the difference between the Crown (tax payers) being prosecuted or council (ratepayers)?
  • Previously the immunity from prosecution only extended to the Crown (eg, government departments) and not councils.  Councils could always be, and were, prosecuted. The RMAA09 removes the Crown immunity.
  • Whether a decision is made to carry out enforcement against the Crown or a council in a particular instance, will come down to the circumstances of the offence, who committed it, and who wishes to carry out the action.

Transitional Provisions

Does the RMAA09 apply to consent processes currently underway?
  • Any processes underway effectively continue under the legislation as it was before the amendments were passed. The exception is restricted coastal activities. If these have not been notified then they go through the RMAA09 decision-making process.  Also the changes made to the national policy statement and national environmental standard processes apply to both proposed and existing NESs and NPSs.
Does the consent lapse for applications lodged prior to 2005 which are on hold for purposes other than for further information, such as aquaculture?
  • Section 159 of the RMAA09 only applies to applications lodged before the RMAA05 where the applicant has not responded to a request for further information under s92(1). It does not appear to apply to consents that may be on hold pursuant to other sections of the RMA.
If an application lapses, will it prevent the ability to recover costs?
  • No. Councils are still entitled to recover actual and reasonable costs associated with receiving and processing resource consents under s36. The ability to recover these costs is not affected by the fate of the application (whether it is approved, declined or lapses).
  • Councils can decide whether to be proactive and notify applicants that an application will lapse or just allow time to pass.

Phase Two

Timing of workstreams

What is the timing on the Phase Two workstreams and what consultation will be undertaken?
  • Cabinet papers will be provided on the Ministry for the Environment website as and when they are released which detail the progress of Phase Two. 
  • For example, consultation is underway on the aquaculture workstream and other workstreams will follow. An independent Technical Advisory Group (TAG) has been established to consider the development of sustainable aquaculture and the TAG report has been released for public consultation. Submissions close on 16 December 2009.

Designations

Why were designations deferred to Phase Two?
  • Submissions and further investigation demonstrated that the issues surrounding decision making on notices of requirement were complex. It was decided that changes to decision making on notices of requirement would be better served by considering them in a more integrated fashion, within the wider context of the Infrastructure workstream of the Phase Two reforms.

Fresh water

Will the Phase Two freshwater management workstream just deal with water allocation? How does it differ from the Freshwater National Policy Statement?
  • No, the workstream will deal with both quality and allocation. Some commonalities with the NPS are expected. A cabinet paper detailing the work programme to implement the Government’s New Start for Freshwater Strategy is provided on the Ministry’s website.

Infrastructure

Will the Phase Two infrastructure workstream cover discharges?
  • The infrastructure workstream covers the provision of built infrastructure. It is likely that discharges and the effects on water quality will be looked at under the Water Quality Limits project, which forms part of the Government’s New Start for Freshwater Strategy programme.  However it is unlikely that any substantive work will be done before July 2010 as the initial priority is water quality limit setting. 
Will there be any compensation for the adverse effect on the loss of property rights under Phase Two?
  • The overlap between the RMA and Public Works Act 1981 is being addressed as part of the infrastructure workstream of Phase Two of the RMA reforms.  No decisions have been made yet as to the extent to which the compensation provisions will change.  Such details are likely to be contained in future cabinet papers.
  • Cabinet papers associated with the various workstreams can be found on the main Ministry for the Environment Website as and when they are released.

EPA

Is there any indication of the further functions of the EPA for Phase Two, for example, the enforcement role?
  • Decisions on the future functions, roles and powers of the EPA are still being scoped. The Government position to date is that the EPA will grow in size and take over some of the duties currently performed by the Ministry for the Environment. Other possible functions previously discussed have included monitoring and enforcement roles.

Minor building works

Will minor building works still require resource consent?
  • The RMAA09 did not address the issue of minor building works. Usually the requirement for a resource consent for such work is determined by the rules contained in council plans.
  • However, the Government is interested in reducing overlaps between the Building Act and RMA consenting process, and is looking at this as part of Phase Two reforms.

Minerals

Are minerals and mining included in Phase Two?
  • Minerals and mining are principally subject to the Crown Minerals Act. At present there is no workstream that explicitly deals with mining or minerals.


Last updated: 30 November 2009