Changes to resource management

Recent changes to the resource management system include the December 2023 repeal of the Natural and Built Environment (NBA) and Spatial Planning Acts and introduction of the Fast-track Approvals Bill.

Fast-track Approvals Bill

Phase one included the introduction of the Fast-track Approvals Bill in March 2024. The Bill will undergo Select Committee review and may become law in 2024.

Fast-track Approvals Bill.

Other work in this phase includes targeted amendments to the Resource Management Act 1991 (RMA).

Natural and Built Environment Act repeal changes

Fast-track consenting

  • The repeal legislation retains the NBA fast-track consenting process. Any consent issued will be treated like a consent under the RMA.
  • The Government has announced its intention to introduce new fast-track consenting legislation within the first 100 days of office (from November 2023). The NBA regime applies until that legislation is passed.

Freshwater consents

  • The NBA amended the RMA to introduce a shorter maximum duration for certain freshwater consents and the maximum duration was linked to NBA plan rules.
  • To recognise some consent applicants may receive shorter durations than they otherwise would have, public notification of replacement freshwater related consents was precluded.
  • Freshwater consents applied for since 24 August 2023 that have not been decided will now have their duration determined in accordance with the 35-year maximum duration provided for in the RMA.
  • Replacement freshwater consents applied for since 24 August 2023 that have not had a notification decision made will now be eligible for public notification under the RMA.
  • Any resource consents granted in accordance with the shorter duration consent provisions are still valid under the RMA.

Read about the work on the National Policy Statement for Freshwater Management.

Requiring authorities

A requiring authority is an entity that can designate land for a specified purpose (such as schools and roading) for planning and consenting. Requiring authorities also have access to the process for compulsory land acquisition under the Public Works Act.

  • The NBA gave council-controlled organisations (CCOs) the same automatic requiring authority status as councils.
  • This has been reversed and CCOs no longer have automatic status.
  • Any in-progress applications to become a requiring authority under the NBA will not be processed and any granted applications will be revoked.
  • Notices of requirement lodged by requiring authorities granted their status solely under the NBA (this is likely to apply to CCOs only), will not be processed and any notices of requirement that have been confirmed will not be able to be exercised.
  • On 23 November 2023, the NBA also broadened the scope and number of ‘non-network’ entities that could apply to become a requiring authority.
  • Any applications that have been submitted will cease to be processed, although where an applicant meets the RMA definition of a network utility operator, they can re-apply under the RMA.
  • If any application has been approved, approvals will be revoked, except where an applicant meets the RMA definition of a network utility operator. In that event, the approval is treated as an approval under the RMA.

Treaty settlements

  • The NBA required information about consent applications to be provided to PSGEs with statutory acknowledgements, even where equivalent requirements under Treaty settlements were time bound or had expired.
  • The repeal legislation amends the RMA to retain this provision.

Mana Whakahono ā Rohe

  • Our understanding is no Mana Whakahono ā Rohe have been initiated or joint management agreements requested under the NBA since August 2023. Parties involved in any that have been initiated or requested under the NBA must not progress it and may may now re-start the process under the RMA.
  • The NBA enabled groups representing hapū to initiate Mana Whakahono ā Rohe (they were previously unable to do so under the RMA). The repeal bill will enable any groups representing hapū that have initiated a Mana Whakahono ā Rohe under the NBA to initiate a Mana Whakahono ā Rohe under the RMA.

NBA repeal changes for compliance and enforcement

The repeal of the NBA reverses all of the compliance and enforcement amendments that applied under the RMA from 24 August, and reverts to the compliance and enforcement provisions of the RMA in effect prior to the NBA’s enactment. Specific changes include:

Topic NBA change Implications of repeal
Change in maximum prison term [s339(1) RMA]  The NBA reduced the maximum term of imprisonment that could be imposed for offending to 18 months. This reduction was also applied to offences under the Resource Management Act 1991 committed on or after commencement of the NBA. Reducing the maximum term of imprisonment to 18 months meant defendants were not eligible to elect a jury trial.  The repeal of the NBA reintroduces the two-year maximum imprisonment term of the RMA, and reinstates the ability for defendants to elect a jury trial, for offending that occurs after the date of repeal.
Change to maximum fine per charge following successful prosecution fines – primary The NBA increased the maximum financial penalties the court could impose under the Act. The maximum fines for primary offending were set at $1 million for individuals and $10 million for companies and increases were also made to maximum financial penalties for ancillary offending. These increases applied to offences under the Resource Management Act 1991 committed on or after commencement of the NBA. The repeal of the NBA means the maximum financial penalties for both primary and ancillary offences revert to those set out in the RMA, (e.g., for primary offences, $300,000 for individuals, and $600,000 for companies). Sentencing in proceedings that relate to offences committed while the NBA was in effect would consider the NBA, the RMA and the Sentencing Act 2002.
Changes to cost recovery for compliance and enforcement activities The NBA broadened the ability for councils to recover the costs of permitted activity monitoring, inspections, incident response and investigations. These cost recovery options were available for actions taken under the RMA following commencement of the NBA. The repeal of the NBA removes the broader powers of cost recovery for compliance activities. The repeal legislation contains a savings provision which clarifies that costs incurred during the time the NBA was in force are still recoverable after repeal. Costs incurred after the date of repeal will be subject to the cost recovery provisions of the RMA.
Ability to apply to the Court to suspend or revoke consent The NBA introduced a pathway for the regulators to apply to the court to suspend or revoke a resource consent due to ongoing, significant, or repeated non-compliance. Consent authorities could apply for such an order for non-compliance with an RMA consent following commencement of the NBA. The repeal of this provision will remove the process (and associated regulations). Applications that have already been made to the Court at the time of repeal will continue, and any decisions on applications will continue to be valid after repeal.
Consideration of compliance history in processing of resource consents. The NBA introduced the ability for councils to consider the compliance history of an applicant or other person responsible for complying with the conditions. This change was in force immediately and applied to consents that have been processed and are currently being processed. Consent authorities will not be able to consider an applicant’s previous compliance history when deciding on an application for any resource consent application lodged after the date of repeal. Consent decisions made before repeal that considered compliance history remain valid. Consent authorities will still be able to consider compliance history in their decisions on consent applications that were lodged, but not yet decided, at the date of repeal. Under the RMA, consent authorities are able to apply appropriate conditions to manage the risk of non-compliance.
Changes in the limitation period The limitation period for criminal offending under the NBA was increased from 12 months to 2 years. This limitation period was applied to breaches or alleged breaches of the RMA committed on or after commencement of the NBA. The NBA repeal reinstates the RMA limitation period of 12 months for offending after the date of repeal. This change is not retrospective, meaning that the 2-year limitation period will continue to apply to offending that occurred during the time the NBA was in force.
Extending the term of excessive noise directions to improve efficiency of enforcement The NBA extended the application of excessive noise directions from 72 hours to 8 days, and this change was also applied to excessive noise directions under s327(3) RMA from the commencement of the NBA. The repeal of the NBA reverts the application of excessive noise directions to the RMA maximum duration of 72 hours.
Three new reasons to issue an abatement notice The NBA introduced three new reasons for abatement notices (in addition to the three existing reasons available under the RMA). These reasons included for preventive reasons, to avoid imminent harm and in respect of non-compliance with a consent notice or covenant required by condition). Two of these provisions were made available under the RMA from the date the NBA commenced. The repeal of the NBA reverts the reasons for issuing an abatement notice to the three reasons available under the RMA. Abatement notices that were issued under the two new reasons that came into immediate effect: (i.e., preventive notices, and in respect of compliance with a consent notice or covenant), continue to apply provided they relate to offending that occurred while the NBA was in effect. A breach of such an abatement notice remains enforceable, including via prosecution in the event it breached, regardless of when that breach occurs.
Introduction of a new offence of breach of consent condition A new offence was introduced by the NBA to recognise where a consent condition was not complied with. This offence was also made available under the RMA for breaches of consent conditions committed on or after commencement of the NBA. The repeal of the NBA reverts to the previous RMA offence provisions, where breaching a resource consent condition is not a separate offence. Any valid action taken in respect of a breach of consent condition that occurred during the window the NBA was in effect will remain valid.
Ability to require insurance to manage risk in consenting. The NBA introduced the ability for consent authorities to require consent holders to retain environmental remediation insurance to manage risk arising from their activities. This option was made available when considering consent applications under the RMA following commencement of the NBA. Any requirement for insurance imposed on a consent considered or processed in the window the NBA was in effect that relied on s674-675 NBA remains valid following repeal.

Other compliance and enforcement provisions that are repealed

  • Introduction of a breach of condition as a trigger to review consent conditions (s337 NBA, s128 RMA) 
  • Regulators required to prepare and publish a compliance and enforcement strategy (S56 NBA) 
  • Requirement to publish information by agencies (s723 NBA) 
  • Requirement for MfE to provide guidance (s665 NBA) 
  • Introduction of Enforceable Undertakings (s665 NBA) 
  • Introduction of Adverse Publicity Orders (s673 NBA) 
  • Changes to power of entry to exclude marae from the general power of entry (and to ensure agencies can enter land for the purpose of assessing compliance with an enforceable undertaking (s727 NBA) 
  • Streamlining electronic service of documents to modernize the legislation (s742 NBA/s352 RMA) 
  • The ability for the EPA to receive the fines from prosecutions by inserting a limitation on the application of the Public Finance Act 
  • Ban on insurance against fines and penalties 
  • Ability for transfer of consents to be prevented due to poor compliance history 
  • EPA specifically enabled to investigate regional councils where regional council is the alleged offender in a resource management compliance matter  
  • Introduction of pecuniary penalties up to $1m for individuals and $10m for companies, civil fines without an accompanying conviction 
  • Introduction of monetary benefit orders, enabling the recovery of the financial proceeds of resource management offending
  • Broader power to require bonds for activities that do not have a consent (e.g., permitted activities) (s 674-691 NBA)