Environmental / Resource Management

Resource Legislation Amendment Bill Passes Third Reading

Almost 18 months after its introduction to the House, the Resource Legislation Amendment Bill has passed its third reading.  The wide-reaching Act amends the Resource Management Act 1991 (RMA), the Reserves Act 1977, the Public Works Act 1981, the Conservation Act 1987, the Environmental Protection Authority Act 2011 and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.

The most significant changes to the RMA are as follows:

  • Increased emphasis on natural hazard management through amendment to section 6 matters of national importance

  • A set of “procedural principles” are introduced, which persons exercising powers and performing duties under the RMA must follow

  • Regional councils and territorial authorities have new functions relating to the long-term development capacity of their region or district

  • Provision for a ‘National Planning Standard’ (the ‘National Planning Template’ from earlier versions of the bill) is introduced, and will apply to regional policy statements, regional plans and district plans

  • 'Iwi participation arrangements' (Mana Whakahono a Rohe:  Iwi participation Arrangements) are introduced, providing an opportunity for local authorities and iwi authorities to discuss, agree and record ways in which tangata whenua may participate in resource management and decision-making process under the RMA

  • Local authorities are now able to apply to the Minister to use a streamlined planning process, in place of the Schedule 1 process

  • Amendments are made to the processing of resource consent applications, including the introduction of new matters that a consent authority must and must not have regard to; a new ‘fast-track’ application process; and a new process to determine whether to publicly notify an application

  • Financial contributions are phased out over five years.

We address these amendments in more detail.  Amendments to other Acts will be addressed in a later Legal Landscape article.

Natural Hazards

Section 6 of the RMA now includes subsection (h): ‘the management of significant risks from natural hazards.’

This provision is expected to be followed with a new National Policy Statement on Natural Hazard Management.   The Ministry for the Environment expects to begin consulting on a draft statement shortly, with the new statement likely to come into force in 2018.

Procedural Principles

The new section 18A of the RMA is a clear signal from the Government that processes under the RMA must be done in the most efficient and cost-effective manner.  The section reads:

18A Procedural principals

Every person exercising powers and performing functions under this Act must take all practicable steps to -

(a)  use timely, efficient, consistent, and cost-effective processes that are proportionate to the functions or powers being performed
      or exercised; and
(b)  ensure that policy statements and plans -
      (i)  include only those matters relevant to the purpose of this Act; and
      (ii)  are worded in a way that is clear and concise; and
(c)  promote collaboration between or among local authorities on their common resource management issues.

New Functions for Local Authorities

Regional councils and territorial authorities now have new functions to ensure the long-term development capacity of residential and business land, specifically:

the establishment implementation, and review of objectives, policies and methods to ensure that there is sufficient development capacity in relation to housing and business land to meet the expected demands of the region/district.

(The addition if subsections 30(1)(ba) and 31(1)(aa))

Development capacity, in relation to residential and business land, is defined as the capacity of the land for urban development, based on:

1.  the zoning, objectives, policies, rules and overlays that apply to the land under the relevant proposed and

     operative regional policy statements, regional plans and district plans; and

2.  the capacity required to meet -

         (i)  the expected short and medium term requirements; and

         (ii) the long term requirements; and

 3.  the provision of adequate development infrastructure to support the development of land.

Obligations on regional councils and territorial authorities in relation to hazardous substances are also removed (sections 30(1)(c)(v), 30(1)(d)(v) and 31(1)(b)(ii)).

National Planning Standard

National Planning Standards (Planning Standards) are introduced through new sections 58B to 58J of the RMA.  Planning Standards will set out requirements relating to any aspect of the structure, format or content (including rules) of regional policy statements, regional plans and district plans.  Planning Standards are required to give effect to National Policy Statements, National Environmental Standards, regulations made under the RMA and water conservation orders.

The first Planning Standard is to be developed by the Minister for the Environment (and the Minister of Conservation in relation to a regional coastal plan) within two years of Royal Assent to the Act.  A draft will be publicly notified for submissions.

 Local authorities will be required to recognise Planning Standards by amending their plans and policy statements.

Iwi Participation Arrangements

The Amendment Act adds a new subpart 2 to Part 5 of the RMA, Mana Whakahono a Rohe: Iwi participation arrangements.  The purpose of iwi participation arrangements is to provide a mechanism for iwi authorities (authorities authorised to represent an iwi) and local authorities to discuss, agree and record ways in which tangata whenua may participate in resource management and decision-making processes under the RMA.

Iwi authorities may invite one or more local authorities to initiate an iwi arrangement at any time (other than in the period 90 days before a general election).  After receiving an invitation, local authorities are required to hold a hui or meeting within 60 days to discuss and agree on the process for negotiating the Mana Whakahono a Rohe or iwi arrangement.

Changes to Resource Consent Application Process

The Amendment Act introduces a ‘Fast Tracked’ (10 day) consent category for minor activities.  This will apply to a controlled activity that requires consent under a district plan (other than a subdivision of land), or an activity that has been prescribed as falling within the fast track category by the Governor-General (on recommendation of the Minister).  If an application is fast tracked, a consent authority must decide whether to give public or limited notification within 10 working days after the date the application was first lodged with the authority (rather than the regular 20 working days).

Section 104 of the RMA is amended to require consent authorities, when assessing resource consent applications, to also consider any proposed measures to ensure positive environmental effects to offset adverse effects that may result from allowing the activity (addition of subsection 104(1)(ab)).

Phasing out of Financial Contributions

Section 108 of the RMA is amended five years from the date of Royal assent by the repeal of subsections (2)(a), (9) and (10).  These are the provisions that currently authorise a condition requiring that a financial contribution be made; define a financial contribution; and require financial contribution conditions to be imposed in accordance with specific provisions in a district plan.

In the meantime, a new section 108AA, which comes into force immediately, contains requirements for conditions of resource consents, except where:

  • agreed to by the applicant, or
  • within a rule specifying conditions for a class of activity; or
  • as provided for in sections 106 or 220 in relation to subdivisions.

Section 108AA is further limited by subsection (5), which states that nothing in the section affects 108(2)(a), which enables a resource consent to include a financial contribution condition.

Section 108AA(5) thus allows the taking of financial contributions to continue under the existing regime until such time as district plans are amended, or the five year period elapses.  The subsection is repealed, along with section 108(2)(a), (9) and (10) five years from the date of Royal assent.

Territorial authorities will be able to continue to impose conditions for the provision of infrastructure and reserves that directly service a subdivision, but the impact of development on infrastructure and reserve demands generally will have to be met from other funding sources.  Inevitably this will mean an extension of the development contribution regimes operated by many territorial authorities, and the adoption of development contribution policies by those that do not have them at present.  It may also mean that greater provision is made for targeted rates to fund infrastructure in growth area.

© Brookfields Lawyers 2017 – All Rights Reserved

 

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