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

Topic/Theme:

Plan development and change processes

Trees – urban environment

Does the definition of ‘urban environment’ only relate to trees?
  • Yes.  The definition is set out in section 76(4B) and only relates to s76(4A) (which is the restriction on district plan rules to not prohibit the felling, trimming, damaging or removal of trees in an urban environment unless specifically identified in the plan or located within a reserve or conservation management area).
What is the correct interpretation of ‘site’ as included in the definition of urban environment?
  • The definition of urban environment does not include the word ‘site’.  The definition refers to an ‘allotment’ which is defined in s218(2) of the RMA.
How will trees that are part of a wider and/or significant eco-system be protected if they fall outside the definition of “urban environment”?
  • Trees outside the definition of ‘urban environment’ can be protected using any of the mechanisms that existed prior to the RMAA 2009 coming into force.  The restrictions on protection rules only relate to trees in urban environments.   For those trees in areas that meet the tests to qualify as an urban environment, councils can schedule those trees either individually or as a group.  Other protection mechanisms such as by-laws, resource consent conditions, and covenants could also be used if required.

Trees – road reserve

How will trees in the council owned road reserves be protected?
  • In most cases road reserves will not fall within the definition of an “urban environment” under section 76(4B) by virtue of them being part of large areas greater than 4,000 square metres, or not having a residential or commercial building on them.  In such circumstances a council could still have a form of blanket protection applying to those trees.
  • In other circumstances, the road reserve has typically been vested in a council so that it, and anything on it, becomes the property of the council.  Anyone damaging or removing trees in a road reserve without council permission may either be breaking by-laws (if these exist) or could be offending under other legislation by virtue of “damaging council property”.

Trees – Waitakere Ranges

Are the Waitakere Ranges included in the tree protection rules?
  • Section 76 (which contains the restriction on having blanket protection rules for trees) makes no direct reference to the Waitakere Ranges Heritage Area Act 2008.    Much of the Waitakere Ranges will not fall within the definition of ‘urban environment’ and therefore in those areas nothing has changed.  
  • For areas that do fall within the definition of ‘urban environment’ councils may need to check whether district plan rules conflict with section 76 (for example do rules relate to vegetation clearance or do they relate to felling, removal, damage or trimming of trees) and consider whether alternative protection mechanisms need to be put into place.

Trees – urban design

How does the removal of blanket tree protection rules fit with urban design?

  • Trees in the urban environment are one element of urban design.  There is nothing to stop councils from having rules requiring the planting of trees for screening or other amenity related purposes, nor are there restrictions on protecting trees by way of resource consent conditions.  

  • Where an existing tree, or group of trees, is a particular feature that requires protection to maintain the character or amenity of an area, this can still be done through identifying the trees (or group of trees) in a district plan (including on maps or in a schedule).  Councils could also protect trees though other mechanisms if required (covenants, by-laws, or by virtue of the trees being on council land for example).

Legal effect of rules

Sections 86A-G apply to rules only and not objectives and policies or any other provisions.  Will this present a problem where the rules and other provisions are mismatched? 
For example, what happens when a plan change seeks to convert rural land to residential and urban rules apply but there are rural objectives and policies?
  • In the initial stages a disjunct may not have much effect.  The weighting of plan provisions generally through case law, has been to accord new plan provisions relatively little weight in the early stages of the First Schedule process, particularly where they have not yet been ‘tested’ through the submission process (see for example Hanton v Auckland CC  A0101/94).
  • Greater weighting is generally accorded to provisions that have passed the point where decisions have been made on submissions, by which time rules can have legal effect in any case.  If a council wants rules to have legal effect earlier (and those rules are not already covered by the exception) then they will need to seek and obtain a Court Order.
Who can apply to the Environment Court to order a rule to have effect from an earlier date under s86D and is there any time limit imposed on the Court? 

  • Only the local authority can apply to the Environment Court and the application can be made before or after notification.  The RMA does not provide guidance as to what to include in an application and there are no specific criteria for the Court to apply.    

  • There is no time limit imposed on the Court within which to make a decision. 
How is the “gold rush” effect managed if a significant change to a plan is proposed that is not a natural resource under s86B(3)?
  • Section 86D provides for a local authority to apply before (or after) a proposed plan is notified for a rule to have legal effect from a date earlier than when decisions have been made on submissions.   Local authorities concerned about the ‘gold rush effect’ should therefore  consider applying for a Court order in advance of a proposed plan or plan change being notified, allowing sufficient time for the application to the Court to be made and the Court to make an order.
Do rules have immediate legal effect under s86B(3) if they relate to a mix of resources and/or issues? 
  • It will most likely depend on how the rule has been written. Where matters covered by the rule can easily be separated out from one another then it may be possible that only part of the rule has immediate legal effect.  Conversely, rules that cover resources in a more general and implicit way may have legal effect in their entirety.  However whether they then apply to a particular resource in circumstances where a matter clearly lies outside the exceptions remains unclear. It is expected that case law will develop in time. 
How is ‘relates to’ defined in s86B(3)(a)? 

  • There is no definition of ‘relates to’ provided in the RMA.  In this situation words are generally to be given their common or ordinary meaning (there must be a connection between the rule and the resource).

  • The word ‘relates’ was intended to convey that a rule does not specifically have to protect a resource to have immediate effect, but could relate to the management of the resource generally.

  • It is expected that case law will develop over time that will further clarify the degree to which a connection is necessary for a rule to relate to a resource.
Why is the coast, natural hazards and the rest of s6 not included in s86B(3)?

  • Section 86B(3) was based around the concept of safeguarding the use of natural resources and was derived from the definition of “natural and physical” resources in the RMA, as well as heritage (which were felt to be the most vulnerable resources).

  • The matters listed in 86B(3) were always intended to be an exception to the general concept of rules not applying until they had been tested through the submission processes.  Therefore there was a desire to ensure that it was not unduly wide or encompass matters that may be regarded as subjective (such as amenity values).  The intent is to ensure the resources most vulnerable to exploitation are protected should plan rules be about to change.  At the same time there needed to be a balance with the rights of property owners to the reasonable use of their land.  The inclusion of all matters in section 6 was not likely to achieve this balance and was considered unnecessary.

  • Natural hazards can also be managed through Building Act processes as well through engineering solutions.
How will people outside of council know which provisions of the plan apply and which don’t?
  • Section 86E requires local authorities to clearly identify any rule in a proposed plan (or plan change) that has legal effect from a date other than the date on which decisions on submissions have been made. This could be done through annotations, or some type of coding (symbols or colours for example).  Such annotations do not actually form part of the plan and can be removed when decisions on submissions have been made and all rules have legal effect.
Does wastewater fall within the definition of “water”?

  • The definition of water under section 2 remains unchanged.  It includes water in all its physical forms whether flowing or not, but does not include water in any form while in any pipe, tank or cistern.

Further submissions

Who determines who can make a further submission? Could this decision leave a council open to judicial review?

  • Councils will ultimately decide whether or not to accept further submissions.   However, it would be possible to challenge, through the Courts, the ability of a further submitter to participate if it appears  that the further submitter is neither representing a relevant aspect of the public interest, nor had an interest that was greater than the public generally.

Is the 10 working day time limit within which to make a further submission a maximum?

  • Clause 7 of Schedule 1 expresses the 10 working day timeframe as a maximum (“no later than”).  However consent authorities do have the power to waive or extend timeframes under sections 37 and 37A for late submissions.

Can a council make a further submission to another council?
  • Clause 8(1) sets out the persons that can make a further submission.  While it does not explicitly list other councils as being able to make further submissions, it is possible for another council to be “a person representing a relevant aspect of the public interest” (as councils generally represent communities) or “a person that has an interest… greater than the interest that the general public has”.

Decisions on submissions

If submissions are grouped according to provisions or matters/issues and not individually addressed, how will submitters know if their submissions have been addressed in a decision?

  • It is expected that submitters will need to take greater responsibility for deciding whether or not their submission has been addressed. Submitters will need to check the decision report of the council as it pertains to the topic or provision to see if the decision matches what they requested in their submission or not.

  • Council officers may also like to ensure that submission data bases are still used to enable searches on particular submissions after the release of decisions in case they are asked what happened to particular submissions.

Plan reviews

Why has s79 been changed to no longer require a plan review every 10 years?

  • Section 79 now provides greater options as to whether a council reviews all or part of a plan at one time.  It is designed to recognise that some parts of a plan may only have been operational for a short time (because of recent plan changes) when the plan is due for review, and means that the council does not need to revisit those parts of the plan.  It also legitimises the actions of those councils that have reviewed their plans on a part by part (or rolling) basis so as to spread resourcing requirements more evenly.

  • The opportunity for councils to undertake a full plan review with all provisions being reviewed at the same time still remains under section 79(4), if councils see greater advantages in staying with that practice.
Under s79 is there any timeframe that applies to reviews of policy statements and plans?
  • No.  S79(1) states that the council “must commence” a review of a provision which has not been reviewed or changed in the previous 10 years; however there is no overall time within which this must be completed.  The maximum two year timeframe between notification and the release of decisions on submissions (clause 10(4) of Schedule One) remains.

Combined plans

Are councils now required to produce a combined planning document when there are cross boundary issues?
  • Councils are only required to consider having a combined planning document.  There is no mandatory requirement for one to be produced (it may not be appropriate or practicable in any given case).  However it would be good practice for councils to keep some form of record to show that they have given consideration to a combined planning document and the rationale as to why they did or did not go on to produce such a document.
The RMA now enables for multiple resource management documents, however section 60 states only one RPS is allowed? Why is this?
  • Section 60 has always said there shall be only one regional policy statement for a region.   
    The regional policy statement provides a key direction setting coordination role for all the plans in a regional. Having multiple regional policy statements runs the risk of the coordination and direction setting role of the regional policy statements becoming confused and may have their effectiveness reduced through gaps and overlaps. If policy is only to apply to a particular area or resource, a regional policy statement is quite capable of conveying that (through different chapters for example).  Alternatively, that policy direction can be contained in the particular regional or district plan that applies to that area or resource.
  • There has always been an ability to produce multiple regional plans.     
How do you address a conflict of requirements between local and regional council?
  • For resource consents, the usual practice is to apply the most restrictive provision.  At a more strategic level, the RPS has a significant ability (enhanced by amendments in 2005) to avoid conflicting or duplicating plan provisions through section 62 (including section 62(1)(h) which related to cross boundary issues, and section 62(i) which relates to control of the use of land) and the requirement that regional and district plans must give effect to the regional policy statement.  In the latter circumstances the RPS becomes a vital coordination and direction setting tool.

 

Iwi management plans

What has happened to the mandatory review of iwi management plans?

  • There has never been a provision of the RMA that requires the mandatory preparation or review of iwi management plans.   The RMA requires that the content of any relevant planning document recognised by an iwi authority and lodged with the council is taken into account in policy statements and plans.   If  iwi management plan issues and objectives are  incorporated into a RMA policy statement or plan, then it is mandatory for those provisions to be subject to review or a plan change within the preceding 10 years.  If they are not, then it is up to the iwi as to when and how they review their plan.

Consent processes

S88 - Making an application

How do you require an applicant to partake in a pre-application meeting and was any consideration given to making pre-application meetings mandatory?

  • Councils need to establish their own best practice policies and will need to be pragmatic.  A large proportion of councils already have a policy of providing one free pre-application meeting or one hour of staff time free for pre-application discussions.

  • It was not considered necessary to make pre-application meetings mandatory at this stage.
How can lay-people ensure their applications are not rejected under s88?

  • There is a greater onus on the applicant to lodge a quality application.  In order to assist this, councils will need to enhance their customer focus and relationships. They will need to ensure that good practices are put in place, such as working with professional bodies to agree on what is a complete and comprehensive application. Guidance and information also needs to be provided to ensure applicants know what they must include in applications.  It may be necessary for lay-people to obtain expert planning advice to help them prepare their applications, particularly for large or complex activities.

  • Suggested good practice would be to use pre-application meetings to improve the quality of applications. This provides councils with a process to provide comment on draft applications and applicants can have assistance to put together better applications. Councils should also provide information to applicants on preparing an application.  Information is available on the Ministry for the Environment’s website and on the Quality Planning website - for example the Everyday Guide series – booklet on Consent Processes and guidance on Preparing a Basic AEE. 

S92 - Further information

Are councils able to make one s92 request for applications lodged as a bundle or do they make s92 requests for each individual application?
  • Good practice would be to issue one further information request for all applications that have been bundled together.  This is consistent with the purpose of bundling applications and with the key objectives of the reforms - efficient and timely processing of applications.
What happens if not all questions of a s92 request are answered?
  • The intent is that the s92 request must be answered in full and a response be received to all questions.  The request is only complete when full and complete answers have been received.
What was the intention of taking away objection and appeal rights to s92 requests?
  • The intention is to speed up the process by not enabling objections and appeals to add delays in the middle of the process. If an application is ultimately declined under s104 due to inadequate information the applicant still has appeal rights.  This change was also part of addressing the procedural lacuna identified by the Court in Palmerston North Industrial v PNCC.
If affected party approval is required, is there a provision for an applicant to request their application is put on hold without council losing the ability to put the application on hold at a later date?
  • Yes – s88E(3) and (4) enables the council to stop the clock an unlimited number of times when requesting and awaiting affected party approval(s).  The use of this provision does not impact on the ability to stop the clock when requesting further information (which is set out in s88C).
Can the applicant request an application be placed on hold?

  • There is no explicit ability in RMA for the applicant to put their application on hold.  However, the applicant may request the council extend timeframes under section 37 or 37A. 

  • The council may wish to develop a policy on which circumstances it will extend timeframes for if requested by the applicant.  For example, at present some councils have a policy of not extending timeframes for applications that relate to vulnerable natural resources and the application is being used as a ‘place holder’.

Lapsing of pre-2005 consents

Why does this provision also not apply to applications lodged post 2005?

  • For consents lodged between 2005 and August 2009 the provisions of the previous 92A required councils to set time limit within which information must be provided, and allowed a council to decline an application is the applicant had not responded within the time limit. Therefore post-2005 councils had an ability to progress consent applications that had stalled at the section 92 stage if they chose to use it.  No such ability existed for consent authorities to progress pre-2005 applications in the same manner.

S95 - Notification

In terms of the first gateway test for notification (public notification) what would happen if the adjoining site is a National Park for example and DoC had given written approval?
  • The new notification provisions provided a clearer separation between effects on the environment and effects on affected parties.  The council will need to consider if there are wider environmental effects, (including impacts on amenity values or recreational uses) which would trigger public notification.  The council is able to notify an application because of special circumstances if it considers that this is necessary. An applicant may also request notification to avoid having to obtain approvals from a large number of affected parties. 
Does a council have to notify if further information requested under s92 is not provided within 15 working days?
  • If a decision on notification or limited notification hasn’t already been made then yes, the application should be notified.
What happens if a council does not consider the information provided to be adequate but the applicant does, and the application is notified under s95C?

  • It is up to the council to decide whether the information is adequate and whether to notify under s95C (if necessary) if it deems the information inadequate and the applicant isn’t forthcoming with adequate information.

If an application is limited notified, do copies of the application only need to be served on those parties who have not provided their written approval?
  • Yes, that’s right.  There is no longer a need to serve notice on those who have provided their written approval.  However, councils will need to be vigilant in ensuring that any changes to the application and/or plans throughout the process are communicated to those who have provided their approval, to ensure they are informed of any changes made or further information (as there is the ability for written approval to be withdrawn).
If the council decides to notify an application is it required to release a written report to the applicant explaining and justifying why it is to be notified?

  • There is no requirement for there to be a written report on the notification decision provided to the applicant.  However, s35(5)(ga) requires the council to keep records of notification decisions, and for these to be publicly available.

  • Practices differ in that some councils issue a notification decision/report in writing and others do not.  It is also good practice for the processing officer to advise the applicant (verbally or in writing) of its intention to notify – in advance of the public notice.
What if a plan specifically states that the application shall not be notified but the council wants to notify the application?
  • Under s95A(4) it is possible  for special circumstances to override a non-notification requirement in a plan.  A request from the applicant to notify can also over ride a non-notification requirement in a plan (s95A(3)).
How is land “adjacent” defined in s95D(a)?

  • Adjacent land is not defined in the RMA. “Adjacent” has been defined in case law as meaning “lying near or close; adjoining; continuous; bordering; not necessarily touching though this is by no means precluded”.  Refer to Mayor Councillors and Citizens of the City of Wellington v Mayor Councillors and Burgess of the Borough of Lower Hutt (1904) AC 773, 775. See also, NJ Buckland and WN McNeil v Rodney DC [1996] RMA 819/95.

Is it possible to re-notify an application if a notification decision has been made but further information requires this decision to be changed?

  • Yes, s104 states that a council cannot grant a decision if an application should have otherwise been notified.

S42A - Reports

Does the s42A provision apply for technical reports?

  • Yes, it applies to any type of technical reports.

S100A - Hearing by independent commissioners if requested

Why were the provisions for independent commissioners introduced?

  • This provision formalises greater choice for the applicant and submitter.  The use of independent commissioners reduces any potential conflicts of interest and can help to ensure that there is suitable expertise on the hearing panel.   

What will be the impact on councils?

  • Councils will ideally form a pool of commissioners for their use if they don’t already have such a list.  The particular skills and experience of each commissioner should be documented so particular commissioners can be matched to particular applications where appropriate.  Having such a list can speed up the process of identifying and appointing appropriately experienced commissioners where a 100A request has been made. The list of those who have completed the Making Good Decisions training course is a good starting point.

  • Councils will also need to have a method of establishing the costs of independent commissioners for submitters if they haven’t already.
Can a panel of only elected members be requested?

  • The RMA is silent on this.  Section 100A relates to request for the appointment of independent commissioners only.

  • An applicant can request elected members as decision-makers, but it is at the discretion of council as to who they ultimately appoint based on the type of application, its complexity, the skills required, conflicts of interest etc.
Does an applicant need to request independent commissioners within five  working days?
  • Yes, the request must be made no later than five working days after the closing date for submissions on the application.
What level of decision making does s100A apply to and does it apply to plan changes?
  • Section 100A applies to council hearings for notified resource consent applications and notified change of conditions.
If a submitter requests an independent commissioner why does the applicant need to pay?
  • For a notified applicantion, the applicant always has to pay as its application initiated the proceedings.  The new provisions ensure that if submitters have requested independent commissioners that they are also responsible for the costs in part (i.e those costs associated with their request).  However if requests are made by both submitters and the applicant, then only the applicant pays.
Who pays if a council appoints independent commissioners itself?
  • The council is responsible for appointing decision-makers – therefore they don’t need to make a ‘request’ to themselves.  In terms of them deciding to appoint independent commissioners there is no change from before the RMAA 2009.  Charges depend on each individual council who sets their own fees and charges.
How are community groups going to pay for independent commissioners?
  • Community groups would be required to pay for independent commissioners if requested and depending on their role (i.e, as submitter or applicant).  Community groups are not exempt from these charges, and would need to consider the likely costs and their ability to pay prior to making a request.
Will a list of independent commissioners and their fees be developed?
  • At present commissioners set their own fees. Councils should consider developing their own lists of commissioners and clarifying costs. The Ministry publishes a list of those who have completed the RMA Making Good Decisions training.  The Ministry will not be compiling a list of fees for independent commissioners.

S104 - Consideration of application

If someone originally provides their written approval, then withdraws it, are they able to participate in a hearing?
  • In accordance with section 104(4), a consent authority must ignore subsection 3(a)(ii) if a person withdraws their approval in a written notice received by the consent authority before the date of the hearing (if there is one), or before the application is determined.  In other words if a person withdraws their written approval the consent authority must consider the effects on that person in making a decision on the proposal.
Is notice given to the applicant if a consent is declined under s104(6) and what are the timeframes around this?
  • The normal resource consent decision process and time frames are followed.  It is best practice to inform the applicant of the intention to decline the application prior to doing so.

Closing hearings

Can a hearing be adjourned if further information is required on a matter?
  • The hearing can be adjourned at any time during proceedings, but once the applicant has exercised their final right of reply the hearing must be closed within 10 working days. All further information should be received prior to the applicant exercising their right of reply.

Discount policy

Will the discount policy apply when a statutory time period is not met in full (eg,20 working days for resource consents) or will phases in the process be discounted (eg, if a s42A report is late to a submitter)?
  • The scope of the policy and what processes it applies to has not been formulated as yet.
Will the discount policy be retrospective?
  • No, it is not expected that the discount policy will be retrospective.  This will be clarified in the regulations. 

Direct Referral

Direct referral process

Does the council process the application if a request for direct referral is declined?
  • Yes. The consent processing clock restarts and the consent processing continues through to its logical conclusion as though the direct referral request had not been made.
Once a notice of motion is lodged does it follow the Environment Court process?
  • Yes.  Once the application has been referred to the Court, Part 11 of the RMA (which pertains to the Environment Court) applies in its entirety.
How will the direct referral process affect council delegations?
  • As there is only 15 working days to make a decision on direct referral, the council decision on whether to proceed with direct referral will need to be made promptly.  Councils need to carefully consider the level at which they are comfortable with this decision being made and ensure this is reflected in delegations.  Councils will need to formulate their own policies/delegations as to whether the decision will be made by a council officer and/or elected members. 
Where does mediation fit in the direct referral process?

  • Mediation could be suggested to the Court but it is at the discretion of the Court as to whether mediation is entered into. 

  • If the application does not proceed to the Court and is processed by the council, then mediation is also at the discretion of the council if the parties agree (s99A).
Could an officer of council who prepared the direct referral report be subject to cross examination in the Environment Court?
  • Yes.  The direct referral process provides for the hearing and the decision to be made by the Environment Court under Part 11 of the RMA generally.  The Environment Court could use any of its procedures and practices under Part 11 (and legislation it cross references to).
Is a copy of the report prepared under s87F by a council for the Environment Court also sent to the applicant and submitters?
  • Yes, section 87F(5) requires a copy of the direct referral decision report to be sent to the applicant and submitters.
What information is to be contained in a notice of motion and supporting affidavit lodged, by the applicant, with the Environment Court?

  • Under section 87G, the notice of motion has to be in the prescribed form, specifying the orders sought and the grounds upon which the application is made.  The supporting affidavit should address the matters giving rise to the application.

There is no ability to appeal a council’s decision on direct referral so what is keeping   councils accountable?

  • There is no ability to appeal as the delays which would result from the application being appealed would undermine the purpose of the provisions.  It is appropriate for the council to have discretion in determining whether direct referral will be used as it is the council hearing  that is being removed through direct referral. If a council is using its powers inappropriately, the Minister could investigate and intervene under section 24 and 24A.  

How will the Environment Court deal with becoming a first tier decision maker? Will any guidance be produced to help persons deal with the Environment Court and vice versa?

  • Guidance will be prepared by the Environment Court to assist with the process.

Are there appeal rights to the Environment Court decision
  • Appeals to Environment Court decisions can only be made on points of law to the High Court.

Proposals of national significance /Environmental Protection Authority (EPA)

Call-in

How many call-ins have there been to date?
  • There have been six call-in applications to date. Four have been decided (three of these by boards of inquiry and one by the Environment Court) and two are currently being considered by boards of inquiry (Hauauru ma Raki and Turitea wind farm proposals).  

National Significance

Section 142(3) sets out the national significance factors for the Minister to consider.   New factor (section 142(3)(h)) relates to assisting the Crown to fulfil its public health, welfare, security or safety obligations or functions.  Are SOE’s excluded from the Crown?

  • An applicant (including an SOE) can make an application directly to the EPA and have its proposal assessed in terms of national significance. One of the factors the Minister can now have regard to is whether the proposal will assist the Crown fulfilling its public health, welfare, security or safety obligations or functions. 

EPA

What are the key roles of the EPA ?
  • Applications for proposals of national significance are able to be lodged directly with the EPA. The EPA then makes recommendations to the Minister about whether the proposals are of national significance and whether they should be referred to a board of inquiry or the Environment Court for a decision. The EPA will also provide administrative support to any board of inquiry that is appointed.   
Costs can be recovered by the EPA from the applicant under s149ZD.  Are s274 parties liable for costs?
  • Neither section 274 parties (where a matter is referred to the Environment Court) or submitters (in the case of a matter referred to a board of inquiry) are liable for costs.
Who enforces penalties for an application that is lodged with the EPA where timeframes are not met?
  • The Secretary for the Environment would be responsible for monitoring the performance of the EPA including its compliance with statutory timeframes.
Could land identified as being nationally significant be the subject of a proposal lodged with the EPA?
  • The Minister may determine that an application lodged by the EPA for a resource consent, designation or plan change is of national significance because it affects or is likely to affect a structure, feature, place or area of national significance.
What matters are considered to be of national significance in regard to the Crown fulfilling its public health, welfare, security or safety obligations or functions?
  • This is a new factor and there are no past examples to draw from. (However an example of a possible application that was discussed during the policy development was a proposed correction facilities.)
Could a council lodge a proposal of national significance with the EPA?
  • Yes, a council could lodge an application for a resource consent with the EPA. A council variation or proposed plan plan can not be lodged directly with the EPA, but the council could request that the Minister call in a plan change it has proposed.    
How will the time limits for a board of inquiry issuing a decision be enforced?
  • A board of inquiry is appointed by the Minister.   If a board is not going to meet the statutory timeframes it would have to seek an extension from the Minister.   The Ministry will monitor whether boards of inquiry are meeting their timeframes.

Phase II EPA

As the EPA is developed, could it fall under the Environment Act?
  • The EPA was set up under Part 4A of the Resource Management Act 1991 as a statutory office within the Ministry for the Environment. Decisions have not yet been made about whether the EPA will have a wider role and what functions it could have under other pieces of legislation. Cabinet papers will be posted on the Ministry for the Environment web site detailing the progress of the Phase Two EPA as they become available.
What is the relationship between the EPA and ERMA?
  • There is no relationship.  Future functions of the EPA are being considered as part of Phase Two.

Trade competition

Trade competition provisions

Is there still the ability to strike out submissions and is there an ability to appeal if a submission is struck out?

  • Yes, section 41C(7) still allows councils to strike out a submission in whole or in part if it considers that the submission is frivolous or vexatious.  There is no appeal mechanism against section 41C(7), but the consent decision can be appealed to the Environment Court.

How do the trade competition surrogacy provisions work with respect to not-for-profit groups who may have been known to get support from large corporates?

  • Surrogates are required to tell to the Court if they are receiving, or have knowingly received  help from a party who is a trade competitor of another party in the proceedings (i.e. Person A).  Having told the Court, the Court will then made a decision as to whether the surrogate can remain a participant.  

Under s308F person C must disclose help of a trade competitor to the Court.  If they do not disclose are they subject to the declaration process?

  • Yes.  Section 308G says that proceedings may be brought in the Environment Court against person A or C (person C being the surrogate).

A trade competitor can only participate if directly affected.  How is “directly affected” defined?

  • “Directly affected” is not defined because who is directly affected depends largely on  circumstances that apply at any given time, and the characteristics of both the environment and the activity being proposed.

  • “Directly affected” is a concept that is not new to the RMA.  It is used in a number of sections outside those relating to trade competition including sections 37,  37A,  and former sections 93,  173,  181, and 190.  There is already established case law around the words.  This case law has shown that an affected person is one who is 'affected in a manner different from the public generally'.  Being interested in a manner different from the public generally, or simply holding a concern about an aspect of a proposal has not been enough to meet the test.  

  • In Ngatiwai Trust Board v Historic Places Trust where the Court said:  "What is to be emphasised is that such words ['directly affected'] apply to the particular circumstances of the case"… the mere fact that a person has concern about an issue does not qualify that person as affected”.

  • Some form of potential adverse effect on a person (or their proprietary interests) must be apparent. Guidance on this can be found in the publication “To Notify or Not to Notify” available on the Ministry for the Environment and Quality Planning websites. 

Who makes the decision on whether a submitter is motivated by trade competition?
  • In the first instance a council would undertake this assessment based on whatever information that it had at the time (for example the submissions expressing opposition on the basis that market share will be lost).
Who can bring a declaration under 308G?
  • Any person involved in an appeal before the Environment Court which is resolved can then bring a declaration.
What happens if a council takes something into account that a trade competitor has said?

  • It does not necessarily invalidate the decision of the council but could form the basis of an appeal if the material that was taken into account was instrumental in a decision that then went in favour of the trade competitor.

  • Assuming the trade competitor took part in RMA processes by way of submissions they may have been in breach of section 308B.   If so, a declaration could be brought against the trade competitor under 308G (which relates to a contravention of any of the provisions in Part 11A).
Do the trade competition provisions change anything at the council level?
  • No, nothing has changed in effect at the council level.  However it would be best practice to caution applicants against trade competition motivated proceedings.

Representation at proceedings (section 274)

S274 – Representation at proceedings

Section 274 allows for persons with an interest in proceedings greater than the general public to participate in the process.  Who does this include?

  • It is expected that the existing case law on “persons with an interest that the public generally” will be rolled over into the amended section 274, given the change is grammatical only.

  • An interest could be, but does not have to be, related to having an interest in property that was like to be affected by environmental effects.  It could also extend to those who had official duties and responsibilities (such as Fisheries officers or public health officers)

  • Other case law worth considering includes:

    • Te Runanga O Raumarere v Northland RC [1995]  held that a medical officer of health has standing as a section 274 party.
    • Waiareka Valley Preservation Society v Holcim (NZ) Ltd [2008] held that multiple iwi groups can become 274 parties on the basis of having an interest greater that the public generally.
The Attorney General is the only person able to represent relevant aspects of the public interest.  How do you get the Attorney General to join proceedings?  Would there be any timing issues?
  • How to engage the Attorney General is not spelt out by the RMA.  The person would need to contact the Office of the Attorney General about the issue they are seeking representation on and how best to proceed.  
The section 274 notice period has been reduced from 30 to 15 working days.  From when does the 15 working days apply?
  • Section 274(2) says that the notice period commences from the end of the period for lodging notice an appeal (or from the time a decision has been made to hold an inquiry, if the proceedings are inquiry). 
Can costs be awarded against section 274 parties and the applicant?
  • Yes, when appropriate in the circumstances. The awarding of costs will be determined by the Environment Court.

National instruments

NES

Are there any timeframes on producing NES?
  • No
How do councils recover costs from administering and enforcing NES?
  • Section 36(1)(c) provides an ability for councils to recover costs associated with “functions in relation to the administration, monitoring, and supervision of resource consents (including certificates of compliance) and for the carrying out of functions under section 35 (duties to gather information, monitor and keep records).  In relation to circumstances where a NES requires a resource consent be obtained from a consent authority, or where a person has requested a certificate of compliance, cost recovery would be through the normal section 36 arrangements.  
What is meant by “duplicate” in section 44A which allows for the removal of rules from plans without formality if the rules duplicate or conflict with NES.  Is it intended to mean rules that have the same intent or effect?

  • “Duplicate” is intended to be given its common meaning, which is “exactly like something else; be an exact copy of; having corresponding parts”.   It is unlikely that the wording of plan provisions and an NES would have identical wording, so the use of the word was really intended to apply in circumstances where the effect of the plan provisions and the provisons of the NES were the same.

Why can NPS/NES rules and policies be inserted into plans without further formality?
  • NES and NPS do not contain rules, and NES do not contain policies.  NPS and NES  have already been through a robust formal public consultative process, which the public is part of and there are legal requirements for these to be complied with/considered in decision making.  The RMA requires a local authority to amend its policy statement and plans to include specific objectives and policies, if the NPS directs, without going through the First Schedule process.  The local authority must make all other amendment necessary to give effect to the NPS (for example the development of rules and other methods) but must use the First Schedule process for these. A local authority may amend a plan to include reference to NES without using the First Schedule process. NES are national regulations so there is little to be gained from going through the First Schedule process and it adds significant unnecessary costs.  
What assistance/support will be given to councils to implement NPS/NES and what is the timeframe for this?

  • Information and guidance will be made available on the Quality Planning website. The Ministry is also developing information guides to assist councils in the implementation of NES and NPS.

  • Timing will depend on individual NPS and NES.

Enforcement

Enforcement

Section 132(4) allows for a council to cancel a resource consent where significant adverse effects arise from the consent.  When does this apply and does it apply to all types of consents?
  • This provision applies only where there has been a conviction for a breach of resource consent and the Court has ordered a review of that consent though an order made under section 339(5)(b).  Only when reviewing a resource consent under sections 128-132, and having had regard to any reasons of the Court in ordering the review (section 131(1)(aa)) can a council consider cancellation under section 132(4).   The power to cancel the consent applies to all types of resource consents.
Why are councils the only ones allowed to prosecute against the Crown when councils generally represent the Crown?

  • Councils carry out responsibilities and functions delegated to them by the Crown.  They do not actually represent the Crown.  Councils are one of the few organisations or persons with the staff, expertise in environmental monitoring and enforcement, and resourcing that are realistically likely to undertake successful prosecution actions.  Councils are also unlikely to initiate enforcement proceedings for frivolous, vexatious or insupportable reasons and are more likely to consider the interests of the broader community.


Last updated: 22 December 2009