Ministry Seeks Feeback on RMA overhaul

Wednesday March 6, 2013

The Ministry for the Environment (MfE) has called for submissions on reform of the Resource Management Act 1991 (RMA or Act).  It has released a discussion document, Improving our Resource Management System, and called for submissions on reform, with the submission period closing on 2 April 2013.

The proposals focus on three central areas for reform, being:

  • Changes to promote greater national consistency and guidance.
  • Changes to promote fewer resource management plans.
  • Changes to promote effective and efficient consenting systems.

There are also changes relating to more specific issues around better natural hazard management, meaningful Maori participation and improvements in local authority practice.

The full discussion document can be viewed on the MfE's website, but at a high level and as the report sets out, the overall objective of the reforms is to increase the ease of use, certainty and predictability of the resource management process.  The main changes proposed for discussion are summarised below, along with some brief comments on what this might mean for current RMA practice.

Before going on to this, it is worth noting the changes are designed to dovetail and complement existing RMA reform, which includes the Resource Management Reform Bill 2012, Fresh Water Management reform and earlier studies relating to housing affordability. 

Greater national consistency

The matters proposed to be changed include:

  • Changes to sections 6 and 7 of the Act.  The concern was that these sections had an overly "environmental" focus, failing to promote positive aspects of development.  Section 6 is proposed to retain its focus on certain key environmental issues, but with new additions such as the risk and impact of natural hazards, and the provision of infrastructure.  However, a radical change to section 7 is proposed to make this become what might be termed a process-orientated provision.  This includes covering issues such as time effectiveness, collaboration between local authorities and a balance between public and private interests.  Also of note is that regard is to be had to voluntary environmental compensation not encompassed by s5(2)(c).  This suggests matters such as off-site planting programmes could be more easily taken into account when assessing resource consent applications.
  • Greater central government direction.  Although no detail is suggested, the discussion document raises possible central government guidance on priority setting for nationally significant issues.  One aspect proposed is that central government can direct plan changes in certain circumstances.  This could be potentially far-reaching as the discussion document suggests that, if the local authority in question fails to adequately change the plan as sought, the Minister for the Environment could step in to directly amend an existing operative plan.

Fewer resource management plans

The changes raised for discussion under this topic represent a radical departure on both the spatial focus of resource management plans and the decision-making/appeal process.  Areas for change include:

  • A national template for plans.  This is proposed to set the structure and format of resource management plans, including standardised definitions, content for zoning provisions and guidance on certain activities.  This is also a possible vehicle to direct local authorities to consider freeing up more land for housing purposes (although no indication of what this might entail is provided).
  • Integrated Plans.  Each council is then to have a single plan, which is in response to concerns about a multiplicity of planning documents.  In addition, a single plan for a broader area could be agreed between councils (for example, a single plan for all areas within the Bay of Plenty).  The discussion document suggests that this would involve more collaboration between territorial and regional authorities before embarking on the new plan process, including pre-notification engagement, and then "making hard decisions through the plan development process, so that differences in outlook, priority and intention would be dealt with before the plan was finalised, rather than in appeals or consents"
  • Council level decision-making and appeals. If an area determined that it was to have one integrated plan, the discussion document sets out that this would have a "streamline plan development process with limited rights of appeal".  Independent commissioners are seen as a vehicle to promote this, and Environment Court appeals are proposed to be limited to where a council deviates from commissioners' recommendations.  If the council accepted independent commissioners' recommendations, appeal rights would only be to the High Court on questions of law.  The removal of the de novo appeal is also proposed (that is, reconsidering the matter afresh), to be replaced by a "rehearing" concept, with limited opportunity to reconsider evidence.

Resource consent changes

The third major change proposed relates to the goal of achieving more efficient and effective resource consenting.  Multiple changes are suggested, including the following of particular interest:

  • Non-notification and quicker processing times.  This would apply to certain land-related consent activities, such as subdivision or infill housing where this is supported in plans (which is likely to be tied to housing affordability goals).  Exemptions to obtaining resource consents for technical rule breaches are also proposed.
  • Limitation on consent conditions.  The detail of how this might work is not set out, but the suggestion is that conditions of consent should only be imposed where these directly relate to the provision that has been breached, the adverse effect(s) in question, or where volunteered by the applicant.
  • Limits on the ability to submit on resource consent applications.  Similar to concerns behind the last point, it is proposed that submissions can only relate to the reasons the application was notified.  Parties limited notified but not giving written approval would only be allowed to comment on the effects on them (rather than general effects). 
  • Environment Court appeal rights.  As above with the planning process, the de novo appeal right would be removed in favour of a rehearing approach.  Again, independent hearings panels are recommended at the initial council-level hearings.
  • Land availability.  The possibility of expanding call-in provisions to cover issues of housing affordability is also proposed, while changes to stop land-banking are also suggested (to require construction be completed in less than the current three year timeframe upon the approval of the s223 survey plan).

The changes outlined in this section will result in widespread changes to Part 6 of the Act (on resource consents).  The thrust of the proposed amendments could be classified as focussing scrutiny on the most contentious issues.  Although the detail is yet to be worked out, there are likely to be some significant issues to work through to implement these changes.  For instance, how would the concept of "bundling" (where the entire activity is classified according to the highest activity status) fit with only allowing parties to submit on the matter that led the application to be notified?

Summary

Overall, the discussion document raises a number of far-reaching changes to the RMA, although many of these are framed at a high level without a great deal of detail.  If accepted, process related changes (particularly limited appeal rights), will be likely to result in a much greater focus towards Council-level hearings, including the increased use of expert witnesses and the attendant costs associated with these.  In the resource consent context, however, this may be counter-balanced by a reduced scope to consider all aspects of the application.

The submission period to comment on the discussion document is relatively short, being a little over one month.  Should you wish to make a submission on the discussion document, we would be happy to talk to you about this.