This week the latest Resource Management Amendment Act 2020 (Amendment Act) passed its third reading, and obtained royal assent on 30 June 2020. This means many of the changes proposed by the Bill are now in force, and form part of the Resource Management Act 1991 (RMA).
In this update, we will address some of the most notable changes introduced to the RMA, and how these may affect local authorities in particular.
Many of the amendments have been introduced to roll back a number of changes made by the previous government through the Resource Legislation Amendment Act 2017, but the Amendment Act also includes some additional provisions intended to reduce complexity and support the Government's other initiatives to improve freshwater management and freshwater outcomes.
The more wide-ranging review of the resource management system is still underway, with a final report expected to be released to the Minister soon. However, the changes made as a result of this Amendment Act will still require some changes to (particularly regional) Council processes, with the introduction of the new freshwater planning process, further enforcement powers of the Environmental Protection Agency (EPA), and the eventual repeal of sections 70A and 104E relating to the consideration of climate change.
Some of the most notable changes made to the RMA are as follows (with more detail on the freshwater planning process set out below):
- Appeals to the Environment Court for resource consent applications for subdivisions and residential activities are once again available. Appeals are also no longer confined to matters raised in the person's submission. Subdivisions and residential activities will also be subject to the full notification assessment again as of the end of September 2020.
- The presumption that subdivision is restricted unless expressly allowed by a district plan rule has been reinstated.
- Financial contributions remain available to consent authorities after April 2022, with a new exception – financial contributions cannot be imposed on a notice of requirement lodged by the Minister of Education or the Minister of Defence as a requiring authority.
- The Amendment Act clarifies that applicants can request that the processing of a non-notified resource consent application is suspended for up to 20 working days, and consent authorities can suspend the processing of applications until charges fixed at lodging or notification have been paid. However, these changes do not come into force until the end of September 2020, to give councils more time to update their processes.
- Regional councils are able to review consent conditions where a regional plan has been made operative which sets rules relating to maximum/minimum flows, levels, rates or use of water, or minimum standards of water / air quality, and where the council considers it is appropriate to review the conditions to enable the new standards set by the rule to be met. Regional councils also now have the ability to review consents together, if they are doing so to enable the new plan limit to be met.
- The Amendment Act provides that the maximum infringement fees can be increased to $2,000 for natural persons and $4,000 for other persons (i.e. companies and trusts). However, the infringement fee is set by separate regulations, so these regulations will also need to be updated to take advantage of the higher infringement fees.
- The statutory limitation period for filing charges for a prosecution under the RMA has been extended to 12 months (from a previous 6 month limit).
- The EPA has been provided with additional powers to undertake investigations and enforcement actions under the RMA, either conjunctively with those responsible for RMA enforcement currently, or in substitution if the responsible authority has not taken any enforcement action.
- Some further changes made as a result of the Select Committee discussion included amending section 360 to ensure that regulations can be made to exclude stock from the margins of water bodies (not just the water bodies themselves), and expanding the ability of a council to request Ministerial call-in, to allow call-in of a change or variation to a regional policy statement.
Additional changes have been made to provide for the preparation of freshwater farm plans (once an Order in Council has been gazetted) and provisions to allow for the collection of sales information on nitrogenous fertiliser, in order to support the implementation of the upcoming National Environmental Standards for Freshwater and National Policy Statement for Freshwater Management.
The Amendment Act includes amendments recommended by the Select Committee in relation to the consideration of climate change under the RMA. These amendments are intended to support the interplay between the recent passing of the amendments to the Climate Change Response Act 2002 as a result of the Zero Carbon Bill, as that Act requires emissions reductions plans and national adaptation plans to be prepared.
Previously it was not clear how these plans could be implemented under the framework of the RMA, given that regional councils are currently prohibited from making rules which consider the effects of discharges to air on climate change. Consent authorities are also currently prohibited from considering the negative impacts of an activity on climate change when processing certain resource consents. These amendments will allow the effects of climate change to be considered generally as part of resource consent applications, as well as by regional councils when setting rules in their plans.
Sections 70A and 104E will be repealed, and emission reduction plans and national adaptation plans have been added to the matters that local authorities must have regard to when making and change regional policy statements, regional plans and district plans.
However, commencement of these changes are delayed until 31 December 2021 to allow more time for government policy in these areas to be developed. This opens up the consideration of the effects of an activity on climate change, in addition to the effects of climate change on an activity (which has been the traditional position of the RMA). This is a significant step away from the approach to date, signalling the Government's intention to make mitigation and reduction of climate change a priority.
Freshwater planning process
The Amendment Act has also introduced a new specialised planning process for freshwater, similar to the planning process used for the Auckland Unitary Plan (set out in the Local Government (Auckland Transitional Provisions) Act 2010). The introduction of this new process also means that the collaborative planning process introduced in 2017 has been repealed.
The Amendment Act provides that councils must notify changes to their regional policy statements and regional plans to implement the upcoming National Policy Statement for Freshwater Management 2020 by 31 December 2024, and make final decisions on these by 31 December 2026.
The new freshwater planning process must be used by councils for proposed regional policy statements or regional plans for freshwater. The council must provide a statement as to whether the whole plan / change / policy statement will go through the freshwater planning process, or whether the remaining parts will undergo a typical Schedule 1 process.
Once the council has notified the proposed planning document, it must provide certain details to the Chief Freshwater Commissioner (who is to be a retired Environment Court judge). The Chief Freshwater Commissioner will appoint a freshwater hearings panel (generally comprised of five members).
The panel has enhanced hearing powers, including directing conferencing of experts and mediation, appointing special advisors, and permitting cross-examination (although this will only be permitted at the request of a party, and only if it is in the interests of justice).
The panel will then provide its recommendations to the council on any matter relating to the freshwater planning instrument, not limited to those raised in submissions. The council then has 20 working days to decide whether to accept or reject the panel's recommendations.
If the council rejects any part of the panel's recommendations (whether or not the recommendation was within the scope of a submission), submitters have a right of appeal to the Environment Court. However, where the council accepts the panel's recommendations, the only appeals allowed are to the High Court on questions of law.
These changes to the RMA will require councils to update some of their processes, particularly in relation to resource consents. The freshwater planning process does provide a somewhat expedited process to assist councils in meeting their obligations under national direction in relation to freshwater.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.