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RMAA05 RMA Reform Package

Outline of presentation

1. Improving local policy and plan making
2. Improving local decision making
3. National decision making and allocation

Speech notes:

Consultation revealed that there was uncertainty about some council functions.

Plans were criticised for being too big and bulky, and taking a long time to become operative. In part, a lack of central government support for local authorities struggling to deal with a new Act contributed to this.

As we enter 2nd generation of plan preparation, we aim to address some of these problems. In particular by providing more support from central government on policy direction for matters of national importance, and guidance on how to better integrate plans with other policy instruments.

Speech notes:

Contaminated land

Regional councils now have an explicit function to identify and monitor contaminated land. This is likely to result in a register of contaminated land being kept by the regional council (although it is not specifically required).

Territorial authorities are responsible for preventing or mitigating any adverse effects of the use, development, or subdivision of contaminated land.

The Ministry is developing standards for the clean up of contaminated land to protect people.

Until NES on contaminated land is developed, local authorities will have to rely on their own expertise or external advice to determine whether the level of contamination in the soil is such that the land has significant adverse effects on the environment.

Allocation

Regional councils may include rules to allocate:

• Water
• Heat and energy from water
• Heat and energy from material surrounding geothermal water
• Capacity of air or water to assimilate the discharge of a contaminant.

With the Minister of Conservation, regional councils can establish rules relating to open coastal water and space in the coastal marine area.

Infrastructure and land use

It is clarified that strategic integration of infrastructure with land use is a function of regional councils. This is similar but more specific than the current function of regional councils to achieve ‘integrated management of natural and physical resources’.

Speech notes:

Plans now only need to be composed of objectives, policies and rules. This should reduce the number of submission points to be summarised; reduce the number of further submissions; and reduce the length of decisions. Note this applies to plans already notified.

Plans can incorporate material (like standards or design guides) into a plan by reference to the material. Changes made to the external document must be incorporated into a plan or proposed plan by way of a variation under the First Schedule.

Consultation with iwi is emphasised at the plan making stage. We were asked to look at making different legislation work better together. Councils can use consultation carried out under other legislation (for example, the Local Government Act) for RMA purposes, as long as those consulted were informed that it could apply to the RMA (and that the consultation was within the last 12 months).

The new functions for keeping and maintaining records of each iwi authority and groups that represent hapū complement the new procedure for consultation during plan making:

New section 35A requires councils to keep and maintain a record of each iwi authority and in some cases groups that represent hapū. Councils must keep a record of:

• The contact details of each iwi authority, and group that represents hapū for the purposes of the RMA
• Any planning documents recognised by each iwi authority and lodged with the council
• Any area of the region or district over which one or more iwi or hapū exercise kaitiakitanga.

Te Puni Kōkiri are working on a database ‘Te Kahui Mangai’ which should be up and running in November (see www.tekahuimangai.govt.nz).

Getting plans from notification to decision required within 2 year timeframe.

Research carried out by the Ministry for the Environment in 2004 showed that a two-year timeframe from notification of plans or plan changes, to reaching council decisions on plans will be more than adequate in most cases.

Changes made to the First Schedule require the Environment Court to refer policy matters back to council for determining, with direction from the Court.

This is about keeping the local in local government. It gives greater emphasis to the community deciding policy and rules, rather than the Court.

It reinforces what has increasingly become Environment Court practice.

A council may approve part of a plan or policy statement that is beyond challenge.

There is no need to get permission from the Environment Court.

The council doesn’t need to wait until a variation has been merged with, or withdrawn from, a proposed plan in order to make the plan operative. Once the proposed plan has become operative, variations automatically become a plan change.

A council can correct minor mistakes or defects to a plan. Prior to the amendment a council could only correct minor errors in a proposed plan.

Types of errors that can be corrected include incorrect plan references, and spelling mistakes, typos made in error.

Any changes made using this provision should not change the intention or meaning of the provision.

Speech notes:

Regional and district plans must now ‘give effect to’ regional policy statements. This doesn’t take effect until the regional policy statement is next reviewed or changed or varied. Once the regional policy statement is changed, regional and district plans will need to be amended to give effect to the RPS as soon as practicable, or within a timeframe specified within the regional policy statement.

Regional and district councils will need to work closely together to make this work, for example to make sure that RPS are not reviewed just after a district plan has been changed, forcing another change to the district plan.

To help this, the First Schedule now states that all councils within a region must agree to a consultation process to be used between them for the review change, or variation of a RPS. This must form part of the triennial agreement to be in place following local authority elections. If the process cannot be agreed upon, the local authorities must notify the Minister for the Environment, who will decide on the process to be used.

Speech notes:

These are the issues identified by the RMA review process. The key message was that there is not so much a problem with the RMA, as with its implementation.

Many of these are being addressed by best practice guidance and training, such as the Making Good Decisions Programme.

But there are some quite significant changes to process, and the overall effect will be stronger decision making at the local level, and importantly, that decision making at the local level will be given greater regard in the Environment Court.

Speech notes:

There are changes to the process for further information requests and commissioning reports. The changes are designed to help avoid further information stand offs that can hold up the processing of resource consents.

A consent authority can now only request further information, not require it. Written reasons must be provided for further information requests.

The applicant must respond to a request within 15 working days.

If applicant refuses to provide further information, the council must proceed with the consent on the basis of the information already provided. The consent authority may refuse the application on the basis that it had insufficient information to determine the application.

If the consent authority declines an application because of insufficient information, the applicant can appeal that decision to the Environment Court.

The Court will first decide whether the council had sufficient information to make a decision. If the Court finds that the Council did not have sufficient information, then it must refuse the appeal.

This means that the applicant must lodge a new application if it wants to obtain resource consent. If the Court determines that the council did have sufficient information, then the Court will hear and decide the application.

We would encourage councils to determine whether to notify the application before making any decision to decline that application due to insufficient information.

Speech notes:

There was uncertainty in the case law around what consultation involved and whether there was a actually duty to consult – was it the responsibility of the council or the applicant?

The amendment now makes it clear that neither an applicant nor a consent authority has a duty to consult any person in respect of resource consents and notices of requirement. However, this does not effect a duty to consult under another enactment, then that duty must still be complied with.

An applicant or the council can still choose to consult any person if they wish, and it may still be helpful to consult affected persons in order to obtain their approval.

In some cases, iwi authorities or groups representing hapu may potentially be affected parties and local authorities may need to contact them to identify any effects of the application on tangata whenua.

If consultation is carried out it should be detailed in the AEE or officer’s report. An AEE will still need to identify any affected persons.

Speech notes:

The changes are aimed at improving the usefulness of pre-hearing meetings in the hearing process so councils can manage both people and information to get to a good decision.

Councils may invite persons to attend a pre-hearing meeting, or if the applicant agrees, require attendance.

If a person required to attend fails to do so and does not give a reasonable excuse, the consent authority may decline to process the person’s application, or to decline to consider the person’s submission.

If the consent authority refuses to consider the person’s submission or application, that person cannot appeal the final decision on the application or become a party to any appeal. However they may object to the decision to decline to consider (under section 357A).

As a matter of best practice, if requiring parties to attend, adequate notice will need to be provided to all parties.

The chairperson of the pre-hearing meeting must prepare a report and circulate it to all parties who attended the pre-hearing meeting at least 5 working days before the hearing begins. The report must set out those issues that are agreed and those that are outstanding. The report may set out the nature of evidence to be called, or a proposed timetable for the hearing.

The consent authority must have regard to the report in determining the application.

The changes ensure that pre-hearing meetings will have a valuable and recognised role in hearings processes and decision making.

The Act now provides for the use of mediation at the pre-hearing stage. If a council decides to use mediation as a tool, they should provide advice to parties about its purpose, limitations and how any outcomes will be used in decision making.

Speech notes:

The goal of the new hearings powers is to provide decision makers with the tools to run an effective hearing and ultimately to make the best decisions possible. It is important to note that the use of the new powers depend on the scale and significance of the application.

Pre-circulation of evidence

Councils may require evidence from applicants and expert evidence from submitters to be lodged with the council prior to the hearing. This enables a hearing committee to be better prepared for the hearing and to assume a more inquisitorial role, particularly for complex applications.

Where this power is used, the applicant must submit briefs of evidence 10 working days before the hearing, submitters using expert evidence must provide that evidence at least 5 days before hearing. We recommended that officer’s report should be circulated to parties about 15 working days before hearing (although there is no requirement in the Act, and it’s a mistake you may have noticed in our fact sheets!). It is important that parties get a chance to see the officer’s report before finalising their evidence.

To facilitate the early submission of evidence in these cases, the time period for beginning the hearing has been extended to within 40 working days after the close of submissions.

Councils have new powers to control the hearing including:

Direct the order of business or take evidence as read.

A consent authority may also direct a person presenting a submission not to present the submission, if it is irrelevant or not in dispute. The authority may also limit the evidence to the matters in dispute.

A consent authority may strike out all or part of a submission if it is frivolous or vexatious or if it discloses no reasonable or relevant case and it would otherwise be an abuse of the hearing process to allow the submission to be taken further. This is a high threshold and consent authorities should be cautious in using this power. The powers to strike out all or part of a submission can not be used until 10 August 2007.

Some information about the use of these powers is provided in the information sheets, and there will be more included in the Making Good Decisions programme.

Speech notes:

There are now accreditation requirements for commissioners and council hearings committees. These are designed to make council decisions more robust and ensure decision makers have the skills they need to implement the new requirements.

Accreditation is mandatory for –

• Chairpersons of hearing panels within 1 year of enactment, 10 August 2006
• The majority of hearing panel members within 2 years, August 2007.

A decision of a consent authority will not be invalid because the decision makers were not accredited.

The qualifications that will be recognised for accreditation is likely to be the Making Good Decisions training programme.

• 1st round completed in July 2005 with 547 successful participants.
• 2nd round has just been completed with another 150 people attending.
• 3rd round is planned for early next year to cater for extra demand.

The programme will cover the use of new powers available to councils.

It is expected that approximately 800 people will have successfully completed the course by the middle of 2006.

On average, approximately 9 commissioners will be accredited for each council.

A council staff training programme is also being run to back-up the Making Good Decisions programme. This will initially focus on assisting resource consent staff and will be widened to link in with initiatives to address the shortage of RMA practitioners.

Speech notes:

Councils are already required to give the reasons for their decisions.

Now a record must also be provided of:

• the main findings of fact
• the principal issues in contention
• a summary of the evidence heard
• relevant plans and policy documents and relevant statutory provisions considered.

This links in with new requirement for court to have regard to council’s decision when considering an appeal.

Speech notes:

Many of the changes originally proposed to the Environment Court’s role on appeal didn’t make it through the legislative process, as it was recognised that the case management system used by Environment Court is working well.

The Court’s backlog of cases has substantially reduced – standard cases can now be scheduled for a hearing within six months of being lodged. A case manager will now phone within 2 weeks of an appeal being lodged to clarify details with the party.

A major change is that the Court must now have regard to the council’s decision. The Court may accept evidence that was submitted at the council hearing and may save hearing time by taking evidence as read. This flows from more robust decisions at the council stage.

Decisions on notification will in the future be challengeable in the Environment Court, rather than the High Court. This is deferred until Minister determines that Environment Court has capacity to absorb an increase in its workload as a result of this new function.

Speech notes:

Changes made through the amendments on national decision making reflect the fact that local authorities are increasingly being asked to consider projects that raise issues of national significance in a policy environment that has provided little guidance.

The changes will facilitate greater central government guidance on balancing competing national benefits and local costs where proposals are of national significance or require consistency throughout the country.

Speech notes:

The amendments allow NPS to be developed and implemented more efficiently.

There are now two processes for development of NPS. The old Board of Inquiry process is retained.

There is a new process for NPS, similar to that for NES – it still requires statutory consultation on, and submissions on, a draft NPS. This is an alternative to lengthy board of inquiry process.

Guidance is provided to help Minister in choosing between the two processes. Guidance includes:

• the advantages and disadvantages of having the national policy statement made more quickly
• the extent to which the NPS differs from existing policies
• and whether there has been any recent and relevant public consultation and debate on the subject matter.

The new process should allow NPS to be developed more quickly, and ultimately make it easier to provide national guidance on significant issues.

NPS can direct that specific provisions be included in regional and district plans without the need to go through a First Schedule process. Although this only applies where a NPS is developed through a board of inquiry process.

Current work areas for NPS include rare and depleted indigenous vegetation, and infrastructure (electricity generation and electricity transmission).

• We expect a discussion document out on transmission before Xmas.
• We are discussing the latest draft of a NPS on rare and depleted indigenous vegetation with Local Government.
• The Department of Conservation are leading the review of the NZ coastal policy statement.

Speech notes:

Concern was expressed by industry groups that the usefulness of NES was restricted in providing national consistency, because local authorities could adopt stricter standards. Telecommunications companies, in particular, identified inconsistencies in the way that similar activities are controlled in different areas, costing the industry $3 million for the roll-out to 34 networks.

The changes enable NES to be absolute. A standard will prevail over rules in plans and over bylaws. Councils will not be able to impose a stricter standard than that required in the NES and will not be able to require resource consents for activities that an NES says is permitted.

There will be circumstances where national consistency is not necessary or it is appropriate to allow local variations. In these cases a standard will set an environmental bottom line or a default that allows local authorities to develop more stringent local standards (through rules, resource consents, or bylaws).

Standards can describe activities as permitted but not where the activity has a significant adverse effect on the environment. Rules in a regional plan or district plan may still be applicable but only where these relate to the effects of an activity that are not regulated by a NES. For example, a NES may specify the acceptable level of radiofrequency fields in connection with telecommunications development but may allow a plan to impose conditions on amenity issues, such as bulk and location.

Work programme:

A package of NES on air quality has been established.

A discussion document for a NES for human drinking water sources is now completed and available on the Ministry’s website, with consultation underway.

The Ministry is also developing a discussion document for a draft NES for the clean up of contaminated land to protect people. The intention is that if contaminated land is cleaned to the levels in the standard, the risk to people is considered so low as to be acceptable.

Other topics being looked at include:

• land transport noise
• bio-solids.

Speech notes:

During the review the Minister asked local government in what circumstances would it be appropriate for the government to intervene in local decision making. The response from LGNZ was included in the Bill as introduced and is largely intact in final Act.

The new provisions enable a consent authority or a resource consent applicant to request the Minister to intervene in a matter of national significance and provide a range of tools for Ministerial intervention.

The matters in which the Minister can intervene are extended to: notices of requirement and requests for private plan changes, as well as applications for resource consent.

The Minister can now choose from a ‘menu’ of options for government involvement. These include:

• Providing information about the national interest through a whole of government/or crown submission – this was done recently in relation to the draft Waitaki catchment plan
• Funding an independent coordinator to ensure processes are run effectively
• Directing an application to be heard jointly if more than one council must give consent
• Appointing a person to the hearing panel
• Call-in and referral to a board of inquiry
• Call-in and referral to the Environment Court.

Where the matter is called-in, the board or Court makes the decision, and the matter is appealable only on points of law only, to the High Court. The exception is the coastal marine area where the Board or Court makes a recommendation to the Minister of Conservation.

Speech notes:

The powers of the Minister are strengthened to create more flexibility for the Minister in monitoring the performance of local authorities.

The Minister is now able to investigate a local authority’s performance and make recommendations for action. The Minister may request information from local authorities. The information is to be provided free of charge, and within 20 working days. These timeframes are consistent with timeframes under the Local Government Official Information and Meetings Act (although the Minister has discretion to extend the timeframe where substantial information is sought).

The Minister has the power to direct local authorities to prepare plans or parts of plans to address resource management issues.

• This power is intended to require councils to deal with a resource management issue that a local authority has not addressed so far.
• It does not allow the Minister to direct the outcome of the planning process, just that the process be initiated.

Speech notes:

Regional councils now have an express function to allocate certain natural resources, including the ability of the resource to assimilate discharges.

The role does not give new powers to regional councils to reallocate resources that are the subject of existing consents during their term, other than by setting minimum flows.

Regional councils can set rules that will apply to applications to "replace" existing resource consents on expiry. Rules may allocate between competing activities.

From August 2008, existing consent holders will be given priority so that they will have applications to replace existing consents considered first. This is the default position but can be changed by the regional plan. As a trade-off for being first in the queue, existing consent holders will be assessed on efficiency of use, good industry practice, and compliance history, as well as other section 104 matters.

This delayed commencement allows councils to consider allocation issues, and if appropriate, bring forward plans to address issues. It also links into the work being done under the Sustainable Water Programme of Action. Recommended priorities for implementation, and tools to support them, are expected to be developed for discussion with stakeholders in early 2006.

The value of existing investment is recognised as a factor in deciding whether to allow the replacement of existing consents, providing greater certainty for businesses and the community.

There is an ability to transfer discharge permits, while avoiding prejudice to environmental outcomes. Transfer of discharge permits may only be in the same catchment (for water) or airshed (for air).

Last updated: 17 September 2007