The Government has finally introduced its long awaited Resource Management Reform Bill. The Bill is yet to be referred to Select Committee when a closing date for submissions will be set.
Notably absent from the Bill are any changes to sections 6 and 7 of the RMA arising from the recent TAG Report. The Bill also does not incorporate any of the changes proposed in the LAWF reports. We expect the Government to tackle these issues in further reforms proposed for the new year.
Three key changes have been introduced in the Bill. The most significant change is the new one-off, streamlined process proposed for the Auckland Unitary Plan which is intended to occur through an amendment to the Local Government (Auckland Transitional Provisions) Act 2010 rather than the RMA.
Proposed Unitary Plan process
In a move which appears to recognise that the Unitary Plan process might still need some tweaking, the Bill empowers the making of transitional regulations for the purpose of preparing the first Unitary Plan. In particular, it allows regulations to be made which replace any of the provisions set out in Part 4 of LGA(A). This is an unusual power which needs close consideration.
The process proposed largely follows that announced by the Minister earlier this month:
- at least 60 days prior to the notification of the proposed Unitary Plan, Auckland Council must provide a copy of the section 32 analysis for the proposed Unitary Plan to the Minister for the Environment for an audit (although Auckland Council has a discretion whether to amend the reports that were audited);
- the submission period has been extended from 30 days to 60 days;
- a Hearing Panel (comprising of three to seven members led by a chairperson) would be appointed by the Environment and Conservation Ministers. While the Bill specifies the necessary experience that the panel members must have, it does not list any additional requirements or qualifications that the chairperson must have (This is unusual given that other statutory panels, such as a Board of Inquiry, must be chaired by a retired Environment or High Court judge.);
- the Panel has the power to require expert caucusing, mediation and alternative dispute resolution, summon witnesses and may allow cross examination. The Bill is silent on whether cross-examination is limited to expert witnesses only. However, this wording is similar to the language in section 149L of the RMA which provides that a Board of Inquiry may permit cross-examination;
- the Panel may require submitters to attend a pre-hearing meeting with the purpose of clarifying or resolving specific issues;
- if a person fails to attend a pre-hearing meeting, the Panel may disregard that person's submission;
- the Panel must make recommendations to the Council no later than 50 working days before the expiry of three years from the date the Council notifies the proposed plan (unless that period is extended by the Environment Minister by up to one year);
- the Council must make decisions on the recommendations within 20 working days of receiving the recommendations (may be extended by the Environment Minister up to a further 20 working days);
- the proposed plan is amended in accordance with the Council's decisions and is deemed, subject to appeal rights, to be approved or adopted;
- submitters may appeal to the Environment Court on any recommendations by the Panel that are rejected by the Council; and
- submitters may appeal to the High Court on points of law only where the Council accepts the Panel's recommendations;
- In respect of designations, both the Council and submitters have a right to appeal the inclusion of a requiring authority's decision in the proposed plan. So even if a requiring authority's decision agrees with the recommendations of the Panel, these appeal rights are still available. This appeal right is not consistent with the appeal rights for Council decisions on the proposed plan which are consistent with the Panel's recommendations. There is the potential therefore that requiring authorities may have to undergo two rounds of Environment Court-type hearing processes - both at the Panel stage and if appeals are lodged. One amendment that could remove this issue would be to limit rights of appeal where the requiring authority has accepted the Panel's recommendation to points of law only (as is the case where the Council accepts the Panel's recommendation). Otherwise, full appeal rights should apply to both Council and requiring authority decisions.
New provisions which have made it into the proposed process include:
- a prohibition on any variations/plan changes during the Unitary Plan process;
- the Panel is not limited by the scope of the submissions but is able to make recommendations on any other matters relating to the proposed Unitary Plan; and
- the Panel must have regard to the Auckland Plan.
We continue to have serious concerns about the removal of the full right of appeal to the Environment Court and the ability of Auckland Council to reject the recommendations of the Panel even though it has not had the benefit of hearing any of the evidence. It must surely be seen as unfair that the two main parties to the hearing process (the Council and the submitter) are treated totally different in respect of appeal rights.
Under the Bill, if the Council does not like the Panel's recommendations, it is under no obligation to accept those recommendations. It can issue a decision to the contrary. However, if the submitter's views are not accepted by the Panel, and the Council decides to accept those recommendations, the only right that a submitter has to appeal the Council's decision is limited to points of law only.
Submitters may also find it unfair that the Bill has left it up to the individual submitter to lodge, and front the costs of, an appeal, where the council does issue its own decision contrary to the Panel's recommendation. As noted above, if the Council does not like the Panel's recommendations, it does not have to appeal, it can simply reject them in favour of its own alternative solution. The fairer position would be that if the Council disagrees, then the Council, rather than the individual submitter (who may have had a "win" in the Panel's decision), should be required to lodge the appeal (and paying the necessary $500 filing fees) with individual submitters being able to join in the appeals in support the Panel or the Council.
Another concern to Aucklanders is the question of "who pays for this new process?". Auckland Council has calculated the projected costs associated with undertaking the new process. Its projections seem far too low. But even on the basis of its forecasts, the Council has urged central Government to agree to contribute to at least some of those costs. However, the Bill makes it clear that Auckland Council will be responsible for all costs incurred by the Panel including remuneration and expenses. The Environment Minister will determine remuneration for the Panel in consultation with Auckland Council. Ultimately, it will be Auckland ratepayers who will be picking up the cost of bringing together the existing regional and district plans into the new Unitary Plan in this novel way.
Six month limit
In an effort to further streamline consenting processes and stimulate economic growth, a new six-month time limit has been imposed on the processing of "medium-sized" consents by all councils. New provisions are also proposed which would require consent authorities to refer applications for resource consent and notices of requirement directly to the Environment Court if the value of the investment in the proposal is likely to meet or exceed any threshold amount prescribed by regulations, unless exceptional circumstances exist.
Section 32 assessment
Changes proposed to section 32 of the RMA include an additional requirement to assess the opportunity costs for economic growth that are anticipated to be lost as a result of the proposal. Strangely, there is no requirement to include an analysis of the opportunities for economic growth that are likely to be gained from the proposal. There is also an additional requirement to consider the opportunity costs for employment which will be gained or lost.
The Bill also includes a number of more minor changes which tidy up existing provisions in the RMA including:
- the introduction of a mandatory requirement for councils to monitor the environment if required by regulations made under the RMA;
- an amendment which would allow the Minister to correct minor mistakes in a national policy statement;
- various provisions clarifying aspects of the direct referral and board of inquiry processes including making it clear that the trade competition provisions apply to directly referred or called-in proceedings;
- clarification of the tree protection rules which may be included in a district plan to make it clear that for sites in the urban environment, the tree or group of trees to be protected must be specifically identified by street address or legal description and groups of trees must comprise a cluster, grove or line of trees located on the same or adjacent allotments; and
- amendments which expand the emergency provisions under section 330 to include "lifeline utilities" as defined under the Civil Defence Emergency Management Act 2002.
Finally, the Bill amends the Local Government Official Information and Meetings Act 1987 to make it clear that information requests may be made to boards of inquiry or tribunals under that Act but only in relation to those meetings which are hearings.
You can view a summary of the provisions included in the Bill here.
We will update you when a date is set for when submissions are due on the Bill. In the meantime, please let us know if we can assist you with a more detailed analysis of the Bill and, later, with drafting a submission on the Bill.