The Resource Management (Simplifying and Streamlining) Amendment Act 2009 came into effect on 1 October 2009, bringing a number of changes aimed at ‘simplifying and streamlining’ a number of resource management processes.
Amanda Douglas, a partner at Wynn Williams & Co, looks at a selection of the practical consequences for resource consent applications.
Which applications are affected?
The Amendment Act applies only to applications and processes lodged or started after 1 October 2009.
Some of the amendments which will impact on the resource consent process include:
Previously, there was a presumption that all applications would be notified unless the adverse effects on the environment would be minor or the proposed activity was a controlled activity. That presumption has been removed and replaced with a new regime.
Now, an application must be publicly notified if the proposal will have or is likely to have adverse effects on the environment that are more than minor, or if the applicant requests notification.
Although on the surface the highlighted wording changes appear subtle, these terms have been interpreted by the courts previously. The intention of the amended Act is that there will need to be adverse effects which are greater than minor before a resource consent application is notified. There will be a higher threshold to meet in order for an application to be notified.
The matters to be considered by the local authority when making the decision whether to notify a resource consent have also been amended. Adverse effects impacting on adjacent neighbours are now more relevant to the question of limited notification (notification only to a smaller group of adversely affected persons) rather than public notification (full notification to the community).
The intention of the Amendment Act relating to notification is that fewer applications will be notified, and that applications will be dealt with more seamlessly.
Further Information and Stopping the Clock
Under the former law every time a council made a ‘further information request’ the time limits within which applications were to be processed stopped running. In order to address concerns about these delays, the Act has been amended so that the ‘clock can be stopped’ no more than twice for information requests from the council – once before the closing date for submissions and once after. Any such request incorporates a time limit for reply.
If the applicant does not provide information within the required time period, the consent authority must consider or assess the application with the information that it has. Previously the application would have remained on hold for long periods awaiting information. If the council has to consider an application lacking in information, the chances are that the application will be turned down due to the inadequacy of information. So, as well as imposing tighter time frames on councils, the amendments are also requiring applicants to be diligent in pursuing their applications.
Consistent with that approach, the Amendment Act also provides that in the case of an application made before August 2005 where the applicant has not responded to ‘further information requests’, the application will lapse on the later of 1 October 2010 or 12 months from the date on which the request was made. Some councils may write to those applicants affected by this provision, but there is no obligation to do so. The onus is on applicants with pending applications to ensure an application does not lapse.
Councils have the ability to extend the time frames set out in the Act for certain steps relating to resource consent processing. However, new provisions have been included to limit such extensions in relation to resource consent applications. Now, time periods can only be doubled by the council if there are special circumstances or the applicant agrees. The applicant must approve any greater extensions and certain criteria set out in the Act must also be met. The intention is to ensure that resource consent applications will be processed more quickly.
Reports by council officers or consultants on behalf of the council may now incorporate material from the Assessment of Environmental Effects lodged with the application. This will hopefully reduce the length of officers’ reports and, possibly, the costs that the applicant pays (as part of the council charges) for the preparation of and for the peer reviews incorporated into those reports.
Decision Makers – Independent Commissioners
Both applicants and submitters may request that an independent commissioner be appointed to hear a resource consent application. This must be done promptly after submissions close on a notified application. The person making the request will be responsible for the additional costs of appointing the commissioner over and above the ordinary hearing costs. Before a submitter exercises the new ‘right’, the associated additional costs need to be considered.
End of Hearing
In order to address the practice of hearings being adjourned, rather than closed, the Act has been amended to deem that a hearing is closed 10 working days after the applicant's right of reply. Previously, many hearings were only adjourned after a hearing, so the 15 working day time frame for issuing a decision did not start to run and decisions were often delayed. By deeming the hearing to be closed, that time will start to run earlier and decisions should be made in much shorter time frames.
The Amendment Act provides for a discount policy reducing council fees if the council is responsible for failures to meet the required time periods. This is intended to provide an incentive to councils to meet the time frames in the Act. Regulations will be introduced to implement these changes.
Direct referral to the Environment Court
Until now, all resource consent applications had to be made to a local authority. The Act now allows an applicant to request a council to bypass the hearing before the council and for an application to be lodged directly with the Environment Court. However, the agreement of the relevant council is required for this to occur. This option is only available for applications for resource consents or changes or cancellation of conditions which involve limited notification or public notification.
Prosecutions – Contravening Consents
Finally, a word of warning. As well as increasing fines for offences under the Act (which include contravening the requirements of a resource consent), a resource consent could now be affected if there is a conviction for an offence under the Act. The amendments enable the court, on a prosecution, to order a review of the resource consent where there has been a conviction relating to that resource consent. It is more important than ever to meet the requirements of a resource consent at all times!!
The amendments referred to above are only a selection of the amendments to the Resource Management Act made by this Amendment Act. If you are embarking on the resource consent application process, it is a good idea to seek advice about the current state of the relevant legislation and its impact on your proposal.