The Resource Management Amendment Bill was introduced to the House on 23 September 2019 and had its first reading in Parliament yesterday. The Bill includes a new freshwater planning process to support the implementation of the National Policy Statement for Freshwater Management 2020 (NPS). The Bill also addresses aspects of consenting, enforcement and the Environment Court provisions.

The primary objectives of the reforms are to reduce complexity, increase certainty and to restore public participation removed by the 2017 Amendments. It is intended that more comprehensive reform will follow, focussing on alignment across different pieces of resource management legislation; creation, amendment and implementation issues relating to plans and providing for public participation; improving the quality of decision-making; the issuing of clear national direction; and removing unnecessary complexity.

Freshwater planning process

The Bill provides for a faster process for planning for freshwater, by providing for the establishment of a national group of Freshwater Commissioners, to co-ordinate, schedule, and hear freshwater planning instruments (proposed regional plans and regional policy statements (or changes) that give effect to the NPS or relate to freshwater) throughout the country. There is a requirement that Regional Councils must publicly notify any freshwater planning instrument that gives effect to the NPS by 31 December 2023.

The Bill provides for the establishment of regional hearings panels to hear and make recommendations on freshwater planning instruments. Panels will be made up of two local elected representatives (or Commissioners nominated by the Council), one member with an understanding of tikanga Māori and mātauranga Māori (to be selected from nominations by local tangata whenua), and two members from the pool of national freshwater Commissioners.

One of the roles of the Freshwater Commissioners is to assist Councils to make changes to their plans to implement the NPS-FM by 2025. The Regional Freshwater Hearings Panels will hear the plan change, and make recommendations to the Council, with the Council having the final decision-making role. The Panels will have the ability to direct conferences of experts, refer matters to mediation or other alternative dispute resolution processes, permit cross examination, commission reports to assist the Panel, and appoint special advisors to assist the Panel.

Regional Councils will have the ability to accept or reject recommendations made by the Panel. The Council will have 20 working days to do so.

If the Council accepts the recommendations of the Panel, then appeals will only be available to the High Court on a point of law. Subsequent appeals will be available to the Court of Appeal, but no further.

If the Council rejects the recommendations, appeals will be available to the Environment Court, similar to the Auckland Unitary Plan process.

Effects of multiple resource consents able to be considered when reviewing consent conditions

The Government has been identified that there is uncertainty amongst Councils about when a consent review can commence following a new plan becoming operative and whether the effects of multiple consents can be considered, creating difficulties in achieving implementation of the National Policy Statement for Freshwater Management 2014.

The Bill amends section 128 of the RMA, clarifying that a consent authority can review water and discharge permits when a relevant rule, part of a plan or plan has become operative. The Bill also allows Regional Councils to review land use consents, to enable Councils to address land use activities which impact water quality, and the Bill clarifies that Councils can consider resource consents as a group. Councils will be able to consider the effects of multiple consents together, including their cumulative effects in relation to the limits set in regional rules under the NPS. Following the review, individual consents would be adjusted to meet new limits, if needed.

Removal of regulation-making powers

The Bill removes sections 360D and 360E of the RMA, to address a concern that section 360D provides the Minister with excessive powers to intervene in local decision-making.

The Bill removes the regulation-making power provided by section 360G, which enables the Minister to make regulations that prescribe activities as fast-track (meaning non-notified resource consents must be processed in ten, instead of 20 working days).

The Bill also removes section 360H, a power that enables the Minister to make regulations to prescribe activities that require resource consent as being subject to a non-notified consent process, and specify who may be considered an affected person, and subsequently has a right to submit, in respect of an application that is limited notified. These changes are intended to reflect the Government's priority on placing more weight on public participation.

Allowing applicants to suspend processing of non-notified resource consent applications

Unlike publicly notified and limited notified resource consents, the RMA does not currently allow applicants to put non-notified resource consents on hold. The Bill enables applicants to have the processing of non-notified resource consent applications suspended for up to 20 working days (c.f., 130 working days for notified applications).

Councils can stop the resource consent ‘statutory clock’ if a charge as not been paid

The Bill allows consent authorities the ability to 'stop the clock' in relation to the processing of a resource consent while waiting for any fixed administrative charge.

Subdivision presumption reversed (again)

Currently subdivision is allowed unless it is restricted by a rule in an NES, a plan or proposed plan. The Bill reverts the presumption of subdivision from a permitted activity rule to an activity requiring resource consent, unless it is expressly allowed by a rule in a district plan, or in an NES. It is intended that this change will increase certainty and reduce complexity by providing continuity in how rules in plans are currently drafted in relation to subdivision.

Financial contributions

The Bill reinstates the option for Councils to use financial contributions through resource consents or permitted activity standards under the RMA. Councils will be able to continue to use either financial contributions (under the RMA) or development contributions (under the LGA) to assist with infrastructure funding.

Repeal of preclusions on public notification and appeal rights in relation to residential and subdivision activities

An application for a restricted discretionary or discretionary activity is precluded from public notification if the activity is a subdivision of land or a residential activity. The Bill removes this preclusion by amending section 95A. The Bill also amends the restrictions on appeals against decisions relating to subdivisions and residential activities (by amending section 120), and the requirement that submitters may appeal only on matters raised in their submission.

Enforcement

The Bill has a particular focus on the expansion of the role of the Environmental Protection Agency (EPA), together with an extension to the maximum time period to file charges, and an increase in maximum infringement fees.

Role of the Environmental Protection Agency

The Minister has noted that enforcement action across Councils is variable. With government funding, the Minister has been creating an enforcement oversight unit to improve the consistency, transparency and effectiveness of council enforcement of RMA rules and decisions. To assist this Unit, the amendments proposed include:

  • Providing the EPA with the power to warrant enforcement officers to obtain evidence in the same manner as Councils under the RMA;
  • Authorising the EPA to commence investigation and enforcement action where no local authority is involved, including the ability to require information from a local authority;
  • Enabling the EPA to intervene and take over the investigations being completed by a Council. The EPA can do so following notification of that Council;
  • Allowing the EPA to apply to the Court for enforcement orders;
  • Providing the EPA with the ability to issue abatement notices; and
  • Allowing the EPA to recover costs from bringing a prosecution.

Procedural Changes

The Bill also allows for two critical procedural changes:

  • Extension of the statutory time limit for filing charges for prosecutions from 6 months to 12 months.
  • Increase in maximum infringement fees from $1,000 to $2,000 for natural persons and $4,000 for companies (maximum is currently $1000, except for stock exclusion offences, where the maximum is $2000).