Resource Management Amendment Bill 2009

The Resource Management (Simplifying and Streamlining) Amendment Bill 2009 ("Bill") has now been introduced into Parliament and referred to the Local Government and Environment Committee for consideration. The Committee is to report back to the House of Parliament on 19 June 2009.

No date has been set yet for submissions to the Select Committee but timing will be tight and preparation of draft submissions should commence soon given the number of proposed amendments. There has already been widespread support for some of the key improvements, as they address longstanding concerns about the Resource Management Act 1991 ("RMA"). Ongoing support will balance the inevitable opposition that these measures will attract from other quarters. Conversely, as noted below, there are some new provisions which may be of concern and which may need to be addressed to safeguard current operations or future opportunities.

The Bill represents phase one of the proposed reforms to the RMA. A second phase will address more complex issues, for example water allocation, and other improvements to the RMA.

The Bill has 9 objectives, namely to:

Reduce costs and delays arising from submissions and appeals.
Reduce the time it takes to reach decisions on proposals of national significance.
Establish an Environmental Protection Authority.
Facilitate timely and cost effective development and updating of planning documents.
Reduce the time and costs associated with resource consent processes.
Increase the efficiency and effectiveness of national RMA instruments.
Ensure that the RMA enforcement regime acts as an effective deterrent to non-compliance.
Improve decision-making processes under the RMA.
Introduce technical and procedural chances to avoid unnecessary delays and improve processes.

A summary of some the more significant amendments follows.

Frivolous, vexatious and anti-competitive objections

One of the objectives of the Bill is to reduce costs and delays arising from submissions and appeals that are frivolous or vexatious, or motivated by anti-competitive behaviour. In order to address this objective, the Bill introduces a range of amendments to disincentivise trade competitors from using the RMA as a tool to delay or thwart projects.

Specifically the Bill:

Reinstates the power of the Environment Court to require security for costs (removal of s284A) and allows the Courts to award more extensive costs, including indemnity and punitive costs (new s285). This is intended to help ensure that applicants are able recover a greater proportion of the costs of defending proposals against appeals lodged by those with anti-competitive, frivolous or vexatious motives. It is also intended to reduce the attractiveness of lodging submissions or appeals with limited merit, and act as a significant and effective disincentive to frivolous and vexatious opponents.
Prevents trade competitors from participating in proceedings unless they are directly affected by a potential adverse effect of the activity on the environment (new s308A-D). This amendment is directed at preventing trade competitors becoming involved in proceedings which do not directly affect them in order to cause delay. This will limit defined classes of submitters from becoming involved in proceedings. It is intended that this amendment will significantly reduce compliance costs and delays for some applicants. Provision is made for declarations to be sought where a trade competitor does become involved, which exposes the trade competitor to damages (new s308G-H).

Makes it explicit that decision-makers are prohibited from having regard to trade competition or its effects in relation to resource consent applications, notices of requirement, the preparation of plans and policy statements, and notification decisions (new s61(3), 66(3), 74(3), 94A(d), 104(3)(a)(i) and 171(1A)). This is intended to address current uncertainty as to the scope of the current trade competition exclusion in the RMA, and ensure that the effects of trade competition cannot be considered.
Discourages covert opposition of trade competitors through third parties (new s308E-F). This amendment is intended to prevent trade competitors from becoming involved in resource consent and private plan change proceedings by side route through third parties.

The re-introduction of security for costs and some of the related measures should probably be given support, as they are designed to deter the almost casual way that so many appeals are lodged, often without merit, and yet which can hold up projects significantly. The trade competition provisions are very complex and need careful analysis. They are far-reaching and industry needs to fully understand the implications and likely effect.

Proposals of national significance - call in powers

Another of the Bill's key aims is to reduce the time it takes to reach decisions on proposals of national significance. A number of amendments are proposed to achieve this aim while maintaining effective public participation and promoting sustainable management. Effectively the Bill aims to modify and enhance the existing call-in powers of the RMA. Again, at face value these provisions may warrant general support

Specifically the Bill:

Creates an "Environmental Protection Authority" to process applications for resource consent, notices of requirement and requests for plan changes for or relating to proposals of national significance (new Part 4A: ss42B and 42C). The creation of a specific body to undertake this role is intended to ensure efficient and timely administration of proposals of national importance.
Enables the Environmental Protection Authority to grant certificates of compliance in respect of proposals or activities related to proposals of national significance (amendments to s139).
Enables applications and requests for plan changes to be made directly to the Environmental Protection Authority where the applicant considers the matter is, or is part of, a proposal of national significance (new s141AA). The usual information requirements apply to such applications. This is intended to reduce the possibility that an important project is not called in as a result of political reluctance on the part of the Minister.
Requires the Environmental Protection Authority to make a recommendation to the Minister within 10 working days after receiving the application or request whether he or she should call-in the project or refer it to the local authority that would have otherwise received the application (new s141AAB). The Environmental Protection Authority also has limited powers to request further information from the Applicant (new s141AAC). The Minister must then decide whether the matter should be called in or referred to the local authority, and if so whether to make a submission on behalf of the Crown, appoint a project co-ordinator to advise the local authority, direct a joint hearing or appoint an additional commissioner (new s141AAD). These mechanisms are intended to ensure processing times for important projects are minimised.
Specifically allows lodgement of applications and notices of requirement related to proposals of national significance (new s141AAG). This section is designed to address a perceived uncertainty over whether minor projects which relate to a larger project of national importance are susceptible to the call in provisions of the Act. This can be done before the Board of Inquiry's decision on the matter that was called in and afterwards provided that the matter was granted or confirmed. The same decision making process applies to such matters as applies to the matter initially called in, although the Environmental Protection Agency must make a recommendation, and the Minister must decide, whether the new, related matter should be publicly notified.
Requires that decisions of the board of inquiry be made within 9 months of the application or request being notified (amendments to ss149), although it can apply to the Minister for an extension of time to 18 months. Again, this section provides a statutory timeframe aimed at ensuring important projects are dealt with in a timely manner.
Leave to appeal beyond the High Court must be sought directly from the Supreme Court. The Supreme Court may grant leave if there are exceptional circumstances justifying the appeal, or may remit the proposed appeal to the Court of Appeal if it considers special circumstances do not exist but that a further appeal from the determination is justified. There is no right of appeal from the Court of Appeal (amendments to s149A). Effectively, this limits any proposal to a maximum of two substantive appeals, rather than three, in an attempt to reduce cost and time involved in approving projects of national importance.

Improving plan development and plan change processes

Another objective of the Bill is to facilitate timely and cost effective development and updating of planning documents that enables rapid responses to changing conditions or emerging environmental issues while retaining an appropriate degree of public participation.

In essence, the Bill responds to the fact that planning processes have proved expensive and time consuming and that the ability of councils to respond to changing conditions has been restricted by these processes. On the other hand, some of the changes proposed seem likely to pose real risks and even added costs to industry and should probably be opposed.

These changes include:

Removing the requirement for local authorities to call for further submissions on proposed policy statements and plans, and allowing local authorities to seek the views of anyone who it considers may be affected by matters raised in submissions as an alternative process (new cl 7 and cl 8, Sch 1. Current cl 6 - cl 8A repealed). These amendments are intended to accelerate the planning process and to reduce the time and costs for local authorities. It is envisaged that by consulting with parties considered affected a full range of arguments should be brought to a council's attention. However, the right to lodge a submission in opposition (in particular) or a submission in support has been regarded in the past as essential by industry and a proposal for its removal at the time of an earlier Bill was strongly opposed. For example, under the Bill a neighbour could lodge a submission and ask that the zoning or noise levels or height allowances or other controls applying to a nearby industrial facility or another neighbour's property be changed in a way adverse to the affected party, and that party will now be denied any right to oppose that relief and participate in the RMA process.
Simplifying planning processes so that local authorities do not need to provide decisions and reasons in respect of each individual submission, but rather enabling decisions to be made according to each plan provision or issue raised (new cl 10, Sch 1). This amendment is intended to reduce repetition and administrative burden, thus reducing the time required by councils to prepare their decisions.
Ensuring that rules in proposed plans or plan changes generally have no legal effect until notification of council's decisions on submissions - except where such rules expressly protect specified natural resources, historic heritage or provide for an aquaculture management area - and enabling local authorities to apply to the Environment Court to have particular rules take effect earlier if they do not fall within the abovementioned exceptions (new ss86A-86C). These amendments are intended to increase certainty regarding the relevant planning provisions and to reduce delays caused by legal arguments relating to the weight to be given to proposed plan provisions.
Limiting appeals to the Environment Court on proposed policy statements and plans to questions of law, except in cases where the appellant has sought and been granted the leave of the Environment Court to appeal on questions of merit (new cl 14(2A), Sch 1, new s290AA and new s280A). These amendments are intended to reduce the costs and delays associated with planning processes and to emphasise that local authorities should be responsible for determining the policy framework for their communities. However the experience of many is that council decisions are often in need of further consideration and input. The fact that so many appeals do result in changed provisions of policy statements and plans clearly demonstrates that. Industry may well wish to oppose the loss of appeal rights where they are genuinely affected by council decisions, and may see the need to seek leave to appeal as unfair and onerous.
Removing the ability for appellants to make challenges seeking the withdrawal of entire proposed policy statements or plans (new cl 14(2), Sch 1). This amendment will increase the obligation on appellants to particularise their concerns and would assist in reducing time delays involved in unspecific appeals, particularly as the Environment Court has no power to order the withdrawal of entire plans in any case.
Removing the requirement for territorial authorities to review their district plans every 10 years and instead requiring that a full review must be commenced if the plan no longer assists the authority to carry out its functions (new s79(2)). This amendment is intended to reduce costs by allowing territorial authorities to extend the time between plan reviews and to enable them to change their plans as and when required. Notably, however, new s25B(3) provides that the Minister may direct a territorial authority to commence a review of the whole or of any part of its district plan.
Removing the non-complying activity category within three years of the amendment coming into force, including by requiring local authorities to change or vary their plans and proposed plans to re-classify all non-complying activities within the three year period, and to consider any activities still classified non-complying at the end of the three year term as discretionary activities (by way of deeming provision) (cl 2(1), cl 147, cl 152 and Sch 1 to the Bill). The amendment is intended to simplify the application and decision-making processes for activities currently classified as non-complying. Removing the non-complying activity status will be seen as advantageous by many. However those industries concerned over "reverse sensitivity effects" will want to consider this change carefully, where they have sought such status for sensitive activities near their facilities.
Explicitly providing that the regional council and territorial authorities within a region may produce combined planning documents integrating district plans, regional plans, and regional policy statements (new s80). This amendment is intended to clarify the existing law in respect of combined plans. Further, the amendment is intended to reduce costs for each local authority, provide for more integrated decision-making, and provide also for a consistency of approach across boundaries. Overall these changes look positive and ones which should be actively supported, subject to more detailed analysis.

Improving the resource consent process

The Bill aims to create more timely and certain consent acquisition timeframes to reduce the cost and delay currently experienced by many consent applicants. In order to achieve this, the Bill amends the public notification provisions and tests, alters the requirements for further information requests and incentivises local authorities to comply with the statutory timeframes. Overall these changes look positive and are ones which should be actively supported, subject to a more detailed analysis. The Bill:

Removes the starting presumption that all applications should be publicly notified and introduces a new presumption (as amended s94) that a consent authority may at its discretion decide whether or not to publicly notify an application (subject to the other specific provisions of the Act). The likely effect of these changes will be to reduce public involvement in the resource consent process, and reduce complexity and delays. In general, the effect of these changes will be probably occur with small to medium projects while large-scale projects, which are typically fully notified in any event, will probably not be greatly affected.
Adds a new requirement (new s94AAC) that a consent authority must not notify an application if it is satisfied the adverse effects of the activity on the environment will be minor (subject to special circumstances, a specific rule stating otherwise in a plan or the applicant requests public notification).
Amends the definition of who can be an adversely affected person (new s93A) so that only persons who are subject to an effect from an activity that is more than minor can be considered to be adversely affected.
Creates the ability for applicants to refuse to respond to a request for further information by the consent authority (amended s92A) and make the consent authority determine the application on the information before them. However, a consent authority may have regard to whether it has adequate information before it, when determining the application (new ss104(1)(ba)) and a consent authority must notify an application if a request for further information is refused (new s94AA(b)(ii)).
Requires local authorities to adopt a policy to discount administrative charges in circumstances where a consent application is not processed within the required timeframes and the local authority is at fault (new s36AA).

Streamlining decision making

Finally the Bill aims to increase the efficiency of decision-making processes under the Resource Management Act. In order to address this objective the Bill introduces a range of amendments to improve workability, provide more flexibility in decision-making arrangements and to clarify appeal rights and processes.

Specifically the Bill:

Allows applicants and submitters on resource consents and notices of requirement to require at least one independent commissioner on a decision panel, provided that the party making the request bears any additional cost (new s100A). This section is intended to address concerns from some applicants about the ability of some decision makers to remain objective (in the face of potential lobbying from their constituents), or whether the decision maker has the appropriate skills or knowledge to determine an application of regional significance.
Enables applicants for resource consents and notices of requirement to request that their application be directly referred to the Environment Court for a decision, provided that the permission of the local authority that would otherwise have made the decision has been obtained (new s87C). This new section is intended to be a cost and time saving mechanism as many applicants and submitters currently incur significant expense through a council hearing for an application which is then immediately and inevitably appealed to the Environment Court.
Indicates the intention to increase the filing fee for lodging appeals with the Environment Court to $500. The increase will follow in separate amendment regulations under the RMA. Currently low Environment Court filing fees do little to discourage the lodgement of poorly conceived appeals and appellants are often unaware of the expense to all parties if the appeal proceeds. The increased fee may help to deter frivolous or vexatious submitters but should not be a barrier to those with a legitimate public interest.
Requires decisions on applications for designations to be made by the relevant local authority (amendments to s171 and s191 and s172 is repealed). The intention of these amendments is to bring the decision making process for designations into line with other similar processes in the Act and increase the timeliness of those decisions, whilst improving confidence in the independence of the decision itself.
Removes the Minister of Conservation's final decision-making role in relation to restricted coastal activities (amendments to s117, and ss118 to 119A repealed). The proposed amendments should reduce perceived conflicts of interest and will bring the Minister of Conservation's role more in line with the Minister of Environment, who has decision making power in respect of policy matters but not resource consents and matters that are called-in.
Requires hearings to be formally closed no later than 10 working days after the last party has presented its case (new s103A). This section should address an increasing trend towards adjourning (rather than closing) hearings, which reduces the efficiency of statutory timeframes. Parties will be able to respond to any information requests arising from the hearing over the course of the 10 day period.

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In this edition:

Resource Management Amendment Bill 2009

Frivolous, vexatious and anti-competitive objections

Proposals of national significance - call in powers

Improving the resource consent process