Frequently asked questions to support local government fulfil Resource Management Act 1991 (RMA) obligations. This is within the context of the COVID-19 response and recovery.
These FAQs are intended to be read alongside the guidance for transitioning through alert levels prepared by the COVID-19 Local Government Response Unit.
Read the guidance for transitioning through alert levels (PDF 748 KB) [Department of Internal Affairs website].
While every effort has been made to ensure the accuracy of these FAQs, they have been provided for information and guidance only, and do not constitute legal advice. Local authorities and consent authorities should seek their own legal advice to inform decision making during COVID-19. Neither the Ministry for the Environment nor the Department of Internal Affairs will be held responsible for any action arising out of the use of these FAQs.
Further guidance for local government can be found at the:
- Department of Internal Affairs: Covid-19 Local Government Response Unit webpage;
- Ministry of Health: Workplace infectious disease prevention webpage;
- Business.govt.nz: Workplace operations at COVID-19 alert levels webpage; and
- WorkSafe: Novel coronavirus (COVID-19) webpage.
You can also stay up to date via www.covid19.govt.nz.
Frequently asked questions:
- Should councils process resource consents during the COVID-19 alert levels?
- How should councils receive consents during the COVID-19 response?
- What are the emergency provisions in the Resource Management Act and how can they be used?
- How should prosecution and enforcement action be considered during the COVID-19 response?
- Should council compliance and monitoring services, including inspections and state of the environment monitoring, continue during the COVID-19 alert levels?
- How should councils continue to engage with tangata whenua?
- Can RMA hearings take place?
- How can a council provide the public access to RMA documents during Alert Level restrictions?
- How will you be dealing with RM Queries during the COVID-19 response?
- I still have questions or issues in relation to COVID-19 and the environment. How do I find out more?
Read the guidance for transitioning through alert levels, prepared by the COVID-19 Local Government Response Unit, for guidance for operating at different alert levels.
Guidance for transitioning through alert levels (PDF 748 KB) [Department of Internal Affairs website].
Consent authorities should take a pragmatic approach to processing timeframes during the COVID-19 alert levels, particularly during alert levels 3 and 4. Councils have broad discretion under sections 37 and 37A of the RMA to extend timeframes, and to waive procedural requirements relating to time, method for serving documents and information requirements. These sections give consent authorities the discretion to double the RMA statutory timeframes when special circumstances such as COVID-19 apply, and once other considerations are taken into account, such as the interests of directly affected parties. Timeframes can be increased further with the agreement of applicants.
The Ministry for the Environment encourages consent authorities to make use of these provisions, where appropriate, and communicate openly with applicants about the timeframes. Priority should be given to consent applications relating to essential services. Councils should prioritise applications that will assist with the economic recovery.
The Resource Management (Discount on Administrative Charges) Regulations 2010 sets out that certain working days may be excluded from a discount calculation. Regulation 3 and the interpretation of ‘excluded days’ is of particular relevance. Working days where consents are not processed due to “a reason in any other enactment” may be excluded from discount calculations. The time period during alert levels 3 and 4 can therefore be excluded from that calculation where these restrictions meant councils were unable to process consents. However, at alert level 2, we anticipate that there would be few situations where councils are unable to process consents due to the alert level restrictions. If some consents cannot be processed due to the need to comply the alert level requirements, or other requirements of the Epidemic Preparedness Notice, State of Emergency, or associated transition period, then those councils may continue to use the excluded days provisions of the regulations on a case-by-case basis. In doing so, councils must be able to demonstrate that they have been unable to process the consent for these reasons.
Further information is available in this guidance document [PDF, 859 KB] on the Ministry for the Environment website.
The RMA enables resource consent applications to be lodged electronically, as reflected in Form 9 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003. Councils able to receive resource consent applications electronically, while still meeting the requirements of Form 9, should continue to do so. Councils that are not already actively encouraging electronic submission should do so and should update their website and social media to clearly communicate these changes with potential applicants. We recognise that some consents are being received via post, and councils are exploring ways to access these.
There are provisions for ‘emergency works’ under sections 330 and 330B of the RMA. Councils (their agents and employees), persons with responsibility for public works, network utility operators and lifeline utilities may elect to exercise these provisions under s330 during the COVID-19 response. There are also special provisions under section 330B which apply when there is a declared state of emergency under the Civil Defence Emergency Management Act 2002 (CDEMA) and during any notified transition period. During a state of emergency or transition period, councils, businesses and others may be directed by the Director of Civil Defence Emergency Management or others to carry out certain works or actions. When acting under s330 and s330B, where the effects of any works will have an ongoing effect, retrospective resource consent will be required. An example would be where a discharge continues after remedial works.
The overriding consideration, in relation to prosecution and enforcement, must be the health and safety of the public. Councils are aware the justice system has responded with a number of measures to respond to the COVID 19 alert level 4 restrictions. This has included limiting physical appearances at court hearings and the prioritisation of matters. The Solicitor-General has also asked central prosecuting agencies to also consider taking steps to alleviate the pressure on the criminal justice system where appropriate.
While individual decisions to prosecute or take other enforcement action under various statues, such as the RMA or the Hazardous Substances and New Organisms Act 1996, sit with councils, consideration of the declaration of an epidemic and a national state of emergency are likely to be relevant considerations in how you exercise any prosecutorial discretion.
While guidance from the Solicitor-General only directly applies to public and Crown prosecutions, the following guidelines provide a useful framework for considering any prosecution or enforcement decision (for further information on how this guidance can assist to inform and provide a framework for enforcement decisions under the RMA, refer to the Ministry’s:
Prosecution or enforcement decisions should follow a two stage test that considers the:
- sufficiency of the evidence to support the charge – can credible evidence be brought so that there is a reasonable prospect of success, and
- public interest in taking a prosecution/enforcement action – the list of factors that may be relevant is not exhaustive but can include such things as the seriousness of the offence, whether serious harm was created, the defendant’s mental or physical harm and whether there are appropriate alternatives to prosecution.
The impact of the COVID-19 pandemic is likely to be a relevant public interest factor to be taken into account with other factors as part of any public interest consideration. For instance, this may mean that a prosecuting agency may need to consider:
- delaying taking any enforcement or prosecution action (subject to any limitation considerations).
- whether the matter may be resolved with alternative solutions or even whether any enforcement action is appropriate in light of current circumstances. At a minimum, the impact of the COVID-19 epidemic means there is likely to be delays in the courts processing matters of a more minor nature and this may limit the effect of taking any enforcement action in the first place.
Should council compliance and monitoring services, including inspections and state of the environment monitoring, continue during the COVID-19 alert levels?
Consent authorities will be exercising their discretion wisely in relation to non-compliance and continued operation of essential services. For example, supermarkets or other essential services may need to operate outside their normal consented hours of operation or other resource consent conditions.
We understand that some actions normally required to comply with consent conditions or plan rules may not be possible during COVID-19 alert levels. Consent holders unable to fulfil requirements, and essential service providers needing to alter their operations or undertake new activities, should notify the relevant local authority to discuss their situation.
However, normal enforcement tools, up to and including prosecution, remain available to councils if the circumstances warrant their use.
- ensure all decisions factor in the circumstances individuals in communities are facing during the COVID-19 alert levels – be reasonable
- prioritise issues of public health and life safety
- promote the use of lower-level enforcement, for example issuing warning letters that do not require a site visit wherever suitable in accordance with council policy
- consider asking consent holders or contractors to supply site photos as an alternative to inspecting where appropriate.
Where compliance inspections are still being undertaken during various COVID-19 alert levels, the requirements of section 332 of the RMA continue to apply. This means that inspectors must still present their warrant of appointment and written authorisation upon entry of private property, inspections must be at a reasonable time (having regard to the nature and purpose of the inspection), and written notice of the inspection must be left in a prominent place if no-one was there.
There must be health and safety measures to ensure workers are kept safe as outlined in the COVID-19 alert level guidance, such as physical distancing requirements. We strongly encourage councils to phone ahead where possible to ensure that contactless inspections can be carried out. For example, you may need to present your warrant by showing it to an occupant through a closed window. Councils with access to drones or other similar technology may wish to consider using these to reduce contact and manage health and safety risk. Drone use must comply with applicable civil aviation requirements and the Privacy Act.
Some tasks which would normally include a site visit may have to be carried out in other ways. For example, via desk review using satellite images.
Councils are expected to continue to engage with tangata whenua in accordance with Schedule 1 clause 1A, clause 2(2), and clause 3B. Councils are also required to honour settlement obligations and Treaty partner relationships, as well as any other agreements.
Councils will be aware that iwi authorities have differing levels of capacity and availability during this time. Therefore, in some instances there may be delays as tangata whenua respond to COVID-19 requirements.
Consequently, we suggest councils discuss and agree with iwi authorities on an engagement and consultation process for the lockdown period and further into the COVID-19 recovery. At this time kanohi ki te kanohi interaction should be replaced with audio-visual link (AVL) technology and electronic documents where possible.
On 15 May 2020, the RMA was amended by the COVID-19 Response (Further Management Measures) Legislation Act 2020 to insert new section 39AA.
This amendment was made to remove potential legal doubt that hearings under section 39 of the RMA are able to be held solely using remote access facilities, including audio-visual links (AVL). The amendment provides for the authority responsible to issue a declaration that the hearing will be undertaken using remote access facilities, if the authority considers appropriate and fair to do so, and is satisfied that the necessary facilities are available.
The amendment requires hearings that are run using remote access facilities to be either livestreamed, or have a transcript or recording uploaded to the Internet as soon as practicable, in keeping with the principle that RMA hearings must be held in public. The Ministry has provided guidance on holding hearings remotely.
See A practical guide to virtual hearings under the RMA (PDF, 2.6 MB)
If a council is considering using AVL for a hearing, the council should consider:
- the availability and quality of the technology to enable any member of the public to watch and listen to the hearing;
- the potential impact of the use of technology on the parties (including the ability to assess the credibility of witnesses and the reliability of evidence presented, and the level of contact or interaction that may be needed between participants); and
- any other relevant matters, for example whether the applicant and submitters still wish to be heard if it is a remote hearing using AVL technology, and what support can be provided by the Council to help parties attend/participate in the hearing.
The amendment applies retrospectively from 25 March 2020, and validates any RMA hearings that have been held using AVL technology before this date.
The Resource Management Amendment Act 2020 has removed the expiry date for the provisions so that councils will continue to have the option of holding hearings by remote access. Section 39AA(6)(a) provides that these procedures do not need to be followed when hearings are held physically, but some parties use remote access facilities (for example, when one or more submitters dial in to present at an otherwise physical hearing), as those hearings are already held in public. However councils may choose to livestream or upload recordings of these types of hearings if they wish, to provide broader public access to proceedings.
On 15 May 2020, the RMA was amended by the COVID-19 Response (Further Management Measures) Legislation Act 2020 to insert new section 2AC of the RMA.
This amendment provides that any documents that are required to be made available to members of the public under the RMA physically, for example at council offices or libraries, can instead be made available electronically, free of charge on an Internet site. In doing so, the council must provide advice about how the document can be accessed or obtained by members of the public.
The amendment applies retrospectively from 25 March 2020. The Resource Management Amendment Act 2020 has removed the expiry date of these provisions, so they will apply on a permanent basis.
Emails to RMQueries@mfe.govt.nz are being monitored and logged for response. Where appropriate, we will direct local authorities to these and subsequent FAQs in lieu of an individually tailored response. We believe that this will provide local authorities with the most expedient and transparent response, while enabling us to focus our capacity and capability on questions that require a tailored response.
I still have questions or issues in relation to COVID-19 and the environment. How do I find out more?
Contact the Ministry via email at RMQueries@mfe.govt.nz or contact your relationship manager if you have further questions.
The COVID-19 Recovery (Fast-track Consenting) Act 2020 introduced a short-term consenting process to fast-track projects that can boost employment and economic recovery.
Visit The COVID-19 Recovery (Fast-track Consenting) Act 2020 to find out more.