Take 19 – another Resource Management Amendment Act
By: Michelle Mehlhopt, Alyssa Langford
Published: 2/10/2019
Last week the Minister for the Environment, Hon David Parker, introduced the Resource Management Amendment Bill (Bill) to the house.

The Bill proposes to repeal a number of the changes to the RMA that were introduced by the previous coalition Government in the Resource Legislation Amendment Act 2017 (RLAA) and otherwise includes some easy ‘wins’ for this Government.  Its stated aim is to reduce complexity, increase certainty, restore public participation opportunities, improve Resource Management Act 1991 (RMA) processes, and support the urgent need to improve freshwater management and outcomes in New Zealand.  

While a more comprehensive review of the resource management system is still underway, this Bill will mean some relatively significant changes on the ground in the meantime, especially for regional councils, by way of the new freshwater planning process and the powers that have been given to the Environmental Protection Authority (EPA). 

Some of the more noteworthy amendments included in the Bill are set out below:

Reversals of RLAA provisions (in whole or in part)
  • The Bill removes the preclusion on public notification and appeals to the Environment Court for resource consent applications for subdivisions and residential activities.  Appeals are not confined to matters raised in the person’s submission.
  • The presumption that subdivision is restricted unless expressly allowed by a district plan rule is to be reinstated.
  • Financial contributions are to remain available to consent authorities after April 2022, except on a notice of requirement lodged by the Minister of Education or the Minister of Defence as a requiring authority.
  • The Bill repeals the collaborative planning process and replaces it with a new specialised planning process for freshwater (more on this below). 
 New provisions
  • The Bill enables applicants to have processing of non-notified resource consent applications suspended for up to 20 working days.
  • Consent authorities can suspend processing of resource consent applications until charges that are payable at lodgement or notification have been paid.
  • Regional councils will be able to also review land use consent conditions by way of section 128(1)(b) (where a regional plan has been made operative which sets rules relating to maximum or minimum levels or flows or rates of use of water, or minimum standards of water or air quality, or ranges of temperature or pressure of geothermal water, and where the council considers it appropriate to review the conditions in light of these new operative rules).  Councils will be able to review the conditions of multiple resource consents concurrently.
  • For emergency works done during a state of emergency, a person will have up to 60 working days to apply for retrospective resource consent.
  • The maximum infringement fees are to increase to $2,000 for natural persons, and $4,000 for all other persons (e.g. companies and trusts).
  • The statutory limitation period for the filing of charges for prosecutions under the RMA will be extended from the current 6-month limit to 12 months.
  • The Bill empowers the EPA to undertake investigations and enforcement actions under the RMA, either in conjunction with or substitution for those currently responsible for RMA enforcement.  This is intended to enhance accountability and provide support for those currently responsible for RMA enforcement.
New specialised planning process for freshwater

The Bill sets out a new specialised planning process for freshwater.  This process is similar to the truncated planning process in the Local Government (Auckland Transitional Provisions) Act 2010.  We have summarised the new process below.

The new freshwater planning process must be used by councils for proposed regional policy statements (RPS) or regional plans (or changes) for freshwater. 

The Bill provides that councils must notify changes to their RPSs and regional plans to implement the new National Policy Statement for Freshwater Management by 31 December 2023 and make final decisions on these by 31 December 2025.

Once the council has notified the RPS or regional plan, it must provide certain details to the Chief Freshwater Commissioner (a new role to be created), who will then appoint a freshwater hearings panel.  The panel is to be chaired by a retired or current Environment Judge, and will generally comprise two freshwater hearings commissioners, two accredited local councillors (or commissioners nominated by council), and one accredited person with an understanding of tikanga Māori and mātauranga Māori (selected from nominations from local tangata whenua).  These panels will have enhanced hearing powers, including directing conferencing of experts and mediation, appointing special advisors, and permitting cross-examination.

The panel will provide recommendations to the council on any matter relating to the freshwater planning instrument (i.e. the panel is not limited to recommendations within the scope of submissions).  The council must decide to accept or reject the panel’s recommendations within 20 working days.

If the council rejects any part of the panel’s recommendations, the Bill provides for merits appeals to the Environment Court on that point, and further appeals on points of law to the High Court.  Where the council accepts the panel’s recommendations, appeals are only allowed to the High Court on points of law, and further appeals to the Court of Appeal (subject to leave being granted).

Conclusion

The Bill has passed its first reading and has been referred to the Environment Select Committee.  Submissions on the Bill are being accepted until 7 November 2019.

If you have any questions about the Bill or would like assistance in drafting a submission, please don’t hesitate to contact our Resource Management team to discuss.
 
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