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Good and bad news in RMA changes

The wide ranging changes to the Resource Management Act leave the basic framework approach intact, while re-engineering some key mechanics. 

Hans van der Wal, a resource management specialist at law firm Duncan Cotterill, said there was both good and bad news for applicants, consent authorities and other participants in the RMA.

Van der Wal said the abolition of non-complying activities and the suspension of proposed plan rules until after Council hearings would please developers yet leave those with a conservation bent feeling deprived of key tools against ever changing threats to the environment. 

“Many environmental groups without the financial clout of large applicants will feel decidedly disenfranchised. While applicants will be looking forward to processing fee refunds, local bodies should start worrying right now about how they are going to finance those refunds and how their often strained resources are going to meet timeframes that at present are proving a bit of a stretch.

“On the other hand, companies that have viewed RMA fines a bit like licence fees have ample cause for concern at the hikes in fines, while local bodies should feel heartened that their enforcement stick has received some considerable sharpening.

“At present it is too early to call, as the true devil will be in the detail with which the statutory drafters are undoubtedly wrestling at present,” van der Wal said.

An eight page release from the Minister of Environment contains no draft amendment bill – instead comprehensive sets of bullet points detail changes to a range of RMA processes and requirements. These cut across the Act, significantly changing the legal tests for,  among other things, consents, who will decide certain applications, what can be appealed and the consequences of offending.  Some key issues will be lifted out, but people with more than a passing interest will do well to read the full release.

In summary:

Resource Consent Applications

There are some major changes to the consenting process, not least of which is the creation of a new centralised consent authority for nationally significant applications, the Environmental Protection Agency.  Details on the agency itself are thin, but its powers are given to the Secretary of the Environment pending its full establishment as a separate authority from the Ministry for the Environment.  A new deadline of 9 months for these nationally significant applications is included.  Infrastructure projects currently required to go via Council hearings are given the opportunity to skip that step and go straight to the Environment Court.  The Minister of Conservation’s veto of large scale coastal permits, like those involved in the Whitianga Marina controversy will also be a thing of the past.

Changes at council processing level are also to be made. They include: removing non-complying activities with their absolute barrier to granting consents where effects are more than minor and plan polices are breached.  Councils’ requests for further information or extra consents will only stop the clock once, while a compulsory processing complaints procedure that rewards the successful complainant with processing fee discounts further puts the acid on council processing.  Notification will become the exception rather than the rule under new legal tests proposed and there is a new deadline for releasing decisions – 10 days after the last hearing day.

Plans & Policy Statements

Measures to simplify getting plans and policy statements into place are another feature.  These include: the removal of a round of (further) submissions, bypassing the hearings process for changes required to implement National Policy Statements, abolishing blanket submissions on plans and requiring plans/policy statements to implement National Environmental Standards.   District-wide tree protection rules, which are seen as a key trigger for unnecessary consents, are to be phased out as well.

Subject to limited exceptions, proposed plan rules will no longer have immediate effect on being publicly notified. Only after the Council hearing releases its decisions on the proposed rules will they have any effect. There is also the possibility to combine district and regional plans and policy statements into one single plan for a region.  The 10 yearly review of plans is abolished in favour of an as-and-when-needed approach.

Appeals

A number of measures designed to stop projects and plans/policy statements being bogged down by endless appeals have been announced as part of the package.  These include: upfront barriers to discourage vexatious appeals, such as the reinstatement of the ability to require an appellant to give security for costs upfront, but the appeal filing fee is upped from the current modest $55 to a more robust $500. 

Grounds for appeals are also to be narrowed, with appeals to plans/policy statements being limited to legal questions unless the Court gives leave to raise factual issues.  Stricter tests designed to weed out trade competitors are included, along with the ability to get the full and not just the legal costs incurred if an appeal is shown to be for trade competition reasons.

Enforcement

In what appears to be an antidote to accusations of pandering to developers, the maximum fine available for RMA offences by companies trebled to $600,000, while the maximum fine for individuals increases by another $100,000.

For further information, contact:

Hans van der Wal, 03 379 2430, 021 878 052, h.vanderwal@duncancotterill.com,