Environmental / Resource Management

Resource Legislation Amendment Bill 2015: Changes to consenting

This article discusses changes to the consenting process that have been introduced in the Resource Legislation Amendment Bill (the Bill).  Our previous articles discussing other changes contained in the Bill can be found on Brookfield’s Environment/Resource Management webpage.

The Bill introduces a number of measures that aim to simplify the consenting process – essentially by reducing the requirements for consents.  Among others, the Bill provides Councils with discretion to not require a resource consent for minor issues, introduces a 10-day ‘fast-track’ process for simple consents, and removes requirements for consents where they are already required under other Acts.  Minister for the Environment, Hon Nick Smith, has predicted that the suite of measures will “reduce the number of consents required each year by thousands.”   Key amendments to the Resource Management Act 1991 (RMA) as proposed by the Bill are outlined below:

Introducing ‘fast-track’ applications

  • The Bill creates ‘fast-track’ applications that are designed to speed up the consenting process for simple resource consents.  Fast-track applications are proposed to apply to applications that are controlled, other than subdivision of land (proposed s 87AAC(1)).
  • In addition, a proposed section 360F provides the Minister with the ability to prescribe certain activities or classes of activities as fast-tracked, so long as he or she is satisfied that they are of an appropriately small scale and complexity.
  • If an application is fast-tracked, a consent authority has 10 working days (as opposed to the regular 20) from the application being lodged to advise the applicant whether the application will be notified or not (s 87AAD). 
  • If an application is notified, or a hearing is held, the application will cease to be fast-tracked.
  • In all other ways a fast-tracked application is treated as a regular application under the RMA.

Certain activities to be permitted activities

  • Under the Bill, certain activities that technically require consent under the RMA may be treated as permitted activities. 
  • A consent authority will have the discretion to treat an activity as a permitted activity where the activity would be permitted but for marginal or temporary non-compliance with the RMA, any adverse effects of the activity are no different than if there was not a rule breach, and where the effects on any person are considered no more than minor (s87BB).
  • Further, under a proposed section 87BA, a boundary activity is a permitted activity if neighbouring property owners provide written approval.   A boundary activity is an activity that requires consent because of a boundary rule, i.e. a rule about distance and size in relation to boundary.

 Reduced consent conditions

  • The Bill introduces amendments to narrow the breadth of conditions that a consenting authority can impose. Proposed section 108AA prohibits conditions that the applicant has not agreed to, or that are directly connected to an adverse effect of the activity on the environment and/or an applicable district or regional rule.
  • Financial contributions as conditions of consents (including money and land) are proposed to be phased out over 5 years by repealing section 108(2)(a) (and associated provisions).

Consideration of applications

  • When considering consent applications, consent authorities will be required to have regard to measures that have been proposed to ensure positive environmental effects that offset any adverse effects of the activity (proposed amendments to section 104(1)(a)). 
  • Under proposed new section 108AA, consent authorities must also have particular regard to the objectives and policies in the national planning template (NPT). Further detail on amendments to the NPT are discussed in our previous article on National Direction.

Amendments to notification provisions

  • The Bill proposes to replace sections 95A and 95B relating to notification.
  • New section 95A precludes public notification for controlled activities, restricted-discretionary or discretionary activities where they are boundary, residential or subdivision activities, or if they are a prescribed activity under section 360G(1)(a)(i).
  • Section 360G inserts provision for new regulations relating to notification of consent applications.
  • The Bill introduces the definitions of “nohoanga” and “overlay classifications”, relating to iwi entitlements to occupy sites for the purposes of customary fishing, the gathering of natural resources, and the Crown’s acknowledgement of particular values in a site.  Under proposed sections 95B(7)-(9), a consent authority must determine whether the activity may affect nohoanga, overlay classifications, or land that is the site of a wahi tapu, and if so notify affected persons.
  • Notification requirements are modernised to bring them up to date with current technology.  Electronic public notification and servicing of documents is introduced, and all public notices will be required to be made available on publicly accessible websites (proposed section 2AB). 

Striking out of submissions

  • The Bill proposes inserting section 41D which would widen the ability of an authority to strike out submissions.  This section would apply to all submissions, not just those on resource consents.
  • Currently, sections 41C(7) to (9) of the RMA empower an authority to direct that all or part of a submission be struck out if the authority considers that certain grounds are satisfied. Section 41D(1) would provide additional grounds for an authority to strike out a submission if it is satisfied that it is frivolous or vexatious, discloses no reasonable or relevant case, or would be an abuse of the hearing process to allow it to be taken further.
  • In effect, these new grounds would require submissions:
    • To relate to adverse effects, where those effects were the reason for the matter being notified;
    • To have a sufficient factual basis (sufficiency will depend on the nature of the submission and the nature and effects of the proposed activity); and
    • Where a submission is supported only by evidence that purports to be independent expert evidence, that the evidence be provided by an independent and suitably qualified person.

  • Proposed section 41D(2) makes it mandatory for an authority to strike out a submission if it is on an application for a resource consent, a review of a resource consent, or an application to change or cancel a condition of a resource consent; and one or more of the above grounds are satisfied; and such a direction to strike out would not materially compromise the authority’s ability to fulfill its Part 2 obligations.

The Bill had its first reading on 3 December 2015 and was referred to the Local Government and Environment Select Committee for consideration.  The select committee will be receiving submissions on the Bill until 14 March 2016.

Further information on the submission process can be found on the Ministry for the Environment website here.

The full text of the Bill can be read here.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.

 

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