The second tranche of amendments introduced by the Resource Legislation Amendment Act 2017 (RLAA) came into force on 18 October 2017. These amendments aim to further streamline the resource consent process, with a move away from public participation in the process in favour of a more straightforward consenting pathway (particularly in relation to many residential-based activities).
Applications for resource consent that are lodged with a consent authority prior to 18 October 2017 continue to be processed as if the amendments had not come into force. Resource consent applications lodged with a consent authority from 18 October 2017 must be processed in accordance with the amendments.
In summary, the changes introduced by the RLAA include as follows:
The presumption in relation to subdivision has been reversed so that anyone may subdivide their land where the subdivision does not contravene a national environmental standard, or a rule in a district plan (or proposed district plan), or if allowed by a resource consent.
Deemed permitted activity
Councils may deem an activity as permitted if the breach of plan rules is only "marginal or temporary", any adverse environmental effects are no different in character, scale, or intensity than those from a permitted activity, and any adverse effects on a person are less than minor.
The exemption is made by way of a notice issued by the consent authority. A consent authority can issue a notice after receiving an application for resource consent, or on its own initiative. Notices lapse after five years if not given effect to.
New consent processes have been added in relation to "boundary activities" (e.g. yard setbacks, recession planes or fence rules). These provide that where an activity only requires a resource consent because it breaches a boundary rule (where the only effect of the activity is on a direct neighbour), and the neighbour infringed upon gives their consent, the activity will be treated as permitted.
On receiving an application for a boundary activity, councils will have 10 working days to provide a notice to the applicant stating that the activity is permitted. As with deemed permitted activities, the exemption lapses after five years if not given effect to.
Fast track applications
A fast track consent process has been introduced whereby certain resource consent applications must be processed within 10 days. This process applies to resource consent applications for district land-use activities with controlled activity status, if an electronic address for service has been provided. New regulation-making powers also provide for additional activities, or classes of activities, to be subject to the fast track process.
The processes for councils to determine whether to publicly notify or give limited notification of applications for resource consent have been replaced by a new step-by-step process. The applicable legal tests are largely unchanged. However, new preclusions on public and limited notification have been introduced, notably in relation to controlled activities (public and limited) and housing-related resource consents (public), and a 10 working day timeframe has been introduced for notification decisions on fast track applications. There are also some activities for which councils cannot publicly notify a resource consent application, including controlled activities, and most subdivisions and "residential activities".
When making decisions on resource consent applications, it is now explicit that councils must have regard to any measure proposed or agreed by an applicant that provides positive effects on the environment to offset or compensate for any adverse effects.
New requirements for conditions of resource consents specify that conditions must either:
i. be agreed to by the applicant; or
ii. be directly connected to an adverse effect of the activity, an applicable district or regional rule or a national environmental standard; or
iii. be required, in relation to administrative matters, for the efficient implementation of the consent.
The ability to appeal council decisions on boundary activities, subdivision consents, and "residential activities" to the Environment Court has been removed (except if those activities have non-complying activity status).
Further, submitters on resource consent applications can only appeal to the Environment Court on a matter raised in their submission. This largely reflects the previous case law, although some decisions had indicated an appeal could be brought in relation to a matter not raised in a submission.
Resource consent applicants or consent holders can now request that an objection against certain council decisions be heard by an independent commissioner. Commissioners may request further evidence from the person making the objection or the council, or commission a report, if that evidence will help them make a decision on an objection.
Public notices and service requirements
There are new provisions regarding electronic publication of public notices and service of documents.
Public notices will now be published on the internet (in full) with only a short summary of the notice to be published in the newspaper. That summary will direct readers to the website where the full notice can be viewed.
The default stance is now to serve documents via an electronic address (where provided). What is considered to constitute an 'electronic address' is not yet known, however the Ministry for the Environment has indicated that this could include email, web address, instant messaging, text messages, and online messaging services.
It remains to be seen whether these changes will make any discernible difference to the resource consent process, and whether any further amendments to the resource consent process will be proposed by the new government.
If you have questions about the implications of the amendments to the RMA, and how they may affect you, contact our specialist Resource Management & Environmental Law Team