SPECIAL EDITION WATCHING BRIEF
Reforming the RMA: Resource Management (Simplify and Streamline) Amendment Bill 2009
On 16 December 2008, Environment Minister Nick Smith announced the appointment of a Technical Advisory Group to support the Government's programme of reform of the Resource Management Act 1991 ("RMA"). The Group includes eight experienced resource management professionals, including Russell McVeagh environmental law partner, Paul Majurey. Understandably, this new Technical Advisory Group has a heavy work load ahead of it after National campaigned strongly on amending the RMA within 100 days of taking office (by May 2009). The amendments are expected to be released in two phases, with the Bill for the Phase One changes (the Resource Management (Simplify and Streamline) Amendment Bill 2009) intended to be introduced by mid-February and back before the House for the final stages in late August.
The Government's proposed reforms of the RMA are to be implemented through a two-phase process. The Phase One reforms are broadly aimed at "streamlining and simplifying" the RMA in a variety of different areas, and through the use of different tools, including financial disincentives and reallocation of powers under the RMA. The overview of the Phase One amendments was released today, with the changes discussed in more detail below.
Phase Two is expected to focus more on policy issues, including urban design, compensation under the Public Works Act, and developing specific national standards.
Phase One
Removing frivolous, vexatious and anti-competitive objections
Through this set of proposed changes, the Government is attempting to discourage persons who are only seeking to delay matters from bringing unmeritorious cases, and to limit the ability of trade competitors to use the RMA as a tool to delay projects. The specific changes developed to target these issues are:
- Reinstating the Environment Court's power to award security for costs.
- Raising the filing fee at the Environment Court from $55 to $500.
- Incorporating a punitive regime for proceedings bought by trade competitors, to be utilised where the Court considers that a party bringing, or continuing, a case essentially on a trade competition basis should have punitive damages imposed on it, as well as the requirement to recompense the party whose position was adversely affected.
Streamlining processes for projects of national significance
As has been flagged by the Government, its focus on simplifying the RMA process in relation to key infrastructure projects has been a priority. The Government has proposed the following changes to address this matter, which it also intends will retain (or increase) public confidence in such projects:
- Applications for projects of 'national significance' can be made directly to the new Environmental Protection Authority ("EPA"). The existing criteria in the RMA for 'national significance' will remain, but with the addition of a new criterion to recognise the operational infrastructure of a nationwide network utility operator. (This criterion is specifically targeted at projects which, individually, may not be of 'national significance' but are integral to the efficient running of nationally significant networks.)
- The EPA will refer applications that meet the criteria to be decided to a Board of Inquiry. (If the EPA does not consider that the criteria are met by an application, it will be referred back to the local authority.)
- The Boards of Inquiry will be chaired by current or former Environment Court judges, who will be required to make a final decision within nine months of the date of notification. The Minister can extend this timeframe out to 18 months provided adequate reasons are provided.
Creating an Environmental Protection Authority
An EPA will be established as a statutory office, with the role and powers of the EPA being exercised in the interim by the Secretary for the Environment. It is intended that the development of the EPA will allow for a necessary separation from the Ministry for the Environment.
Improving plan development and plan change processes
This set of changes addresses the administrative burden on local authorities in respect of the plan change processes. To reduce the amount of administrative work required to be undertaken, the changes are:
- Removing the ability to make general submissions, or submissions seeking the withdrawal of an entire proposed policy statement or plan change.
- The reporting requirements of local authorities in respect of submissions and further submissions will be modified. Additionally, local authority decisions can deal with submissions by issue rather than addressing each submission.
- The 'non-complying' activity status will be removed, with those activities becoming discretionary activities after a transitional 36 month period.
- Enabling a single plan (and other planning documents) to be produced by regional and territorial authorities.
- Rules in proposed plans will have no legal weight until the decisions on submissions have been notified (with exceptions relating to historic heritage, natural resources and aquaculture management areas).
- Appeals on plans and policy statements are to be limited to questions of law, except where the leave of the Environment Court has been obtained.
- Local authorities will no longer be required to review their plans every 10 years.
Improving resource consent processes
The following changes are proposed to incentivise the timely processing of resource consents:
- Removing the existing presumption in favour of notification, and amending the criteria for when public notification is required.
- Simplifying the reporting requirements for council decisions.
- Removing the ability for plans to provide for blanket tree protection rules in urban areas.
- Limiting the ability of local authorities to 'stop the clock' during requests for further information - this may only occur once.
- All councils must develop a 'discount' policy for late consent processing within 12 months.
- Resource consent hearings must be formally closed no later than 10 working days following the completion of the last party's submissions.
Streamlining decision making
The Government is concerned to limit the degree of repetition often faced by applicants in presenting an application to both the council, and as a de novo matter in the Environment Court, particularly when the application is one that will almost certainly be appealed to the Environment Court.
To address this, the Government proposes to:
- Allow applicants to nominate whether a local authority hears their application, or whether it is heard by an independent commissioner (the costs being borne by the requestor).
- Allow applicants to request that their application proceed directly to be heard by the Environment Court (provided the local authority agrees).
- Remove the Minister of Conservation's powers of decision making in relation to restricted coastal activities.
- Allow decisions on notices of requirement to be made by the territorial authority, rather than the requiring authority, to bring this process in line with other consenting processes.
Improving workability and compliance
The Government intends to toughen up on offences under the RMA, principally by increasing the fines able to be imposed, but also by imposing liability on the Crown for offences:
The maximum fine for committing an offence will be raised from $200,000 to $600,000 for corporate offenders and $300,000 for private individuals.
The Court may require a review of an offender's resource consent.
Enforcement action may be taken against the Crown by local authorities.
Improving national instruments
To manage the potentially significant cost of implementing new National Policy Statements ("NPS") and National Environmental Standards ("NES"), the following amendments are proposed:
- An NPS process may be cancelled, postponed or restarted at any time prior to it being gazetted.
- An NPS may direct local authorities to change the objectives and policies of policy statements and plans without need for additional local planning processes.
- Appeals on plans and regional policy statements that are implementing an NPS are limited to points of law.
- Consent authorities must have regard to the relevant provisions of an NES when making a decision on resource consents.
Phase Two
Phase Two of the reforms is proposed to come later, and will look at policy issues in more detail. These reforms may include:
- A revision of the interaction between the RMA and the Public Works Act 1981 so as to reduce timeframes and more generously compensate landowners. National's reasoning is that the increased compensation is worth the economic benefits from faster approval of critical infrastructure.
- Postponing finalising the draft National Policy Statement on Freshwater Management so that further engagement with key stakeholders can occur and a better framework can be developed.
- Exploring new approaches to city development with a review around urban design and encouraging more collaboration between planners and developers.
Effect of the Resource Management (Simplify and Streamline) Amendment Bill 2009
The title of the amendment Bill is itself indicative of the Government's intentions in promoting these changes, which has been marketed as a Bill that will "simplify and streamline" current issues under the RMA, particularly as they relate to delays faced by applicants in the consenting process. However, the changes proposed represent significant potential changes to the RMA and will impact on how businesses interact with local authorities.
Our Resource Management team will publish further analysis on the proposed changes later this week.
If you would like to discuss further the possible effects, impacts or any concerns the proposed reform raises, please contact a member of our Resource Management team.
Derek Nolan – Partner
[email protected]
DDI: +64 9 367 8274
Paul Majurey – Partner
[email protected]
DDI: +64 9 367 8280
Christian Whata – Partner
[email protected]
DDI: +64 9 367 8243
Bal Matheson – Partner
[email protected]
DDI: +64 9 367 8228
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