The Resource Management (Consenting and Other System Changes) Amendment Bill was last week introduced to Parliament under urgency. The Bill proposes significant process changes for infrastructure and energy, housing, farming and the primary sector, emergencies and natural hazards and enforcement. We outline the changes below.
This is the second of two RMA Amendment Bills introduced this year (the first largely targeted freshwater activities and was enacted in October) and forms a key part in the Government’s delivery of its Phase Two RMA reforms, which we earlier summarised here.
Infrastructure and energy
Consenting, duration and lapse
The Bill introduces new categories of infrastructure/energy activities (being long-lived infrastructure[1], specified energy activities[2], and wood processing activities[3]), for which varied consent processing times, durations and lapse periods apply. Changes include:
Applications for resource consent for specified energy activities and wood processing activities must be processed and decided within 1 year (maximum of 2 years in certain circumstances).
Resource consents for long-lived infrastructure and renewable energy generation (but not electricity transmission) have a default 35-year duration.
The lapse period for resource consents for renewable energy generation is doubled to 10 years.
Designations
Changes include:
Addition to the definition of network utility operators to include inland ports and the landward operations of seaward ports.
Notices of requirement must now include an assessment of environmental effects.
If a requiring authority does not have an interest in the land sufficient for undertaking the work, they must consider any alternative sites, routes, or methods of undertaking the work and explain how the work and designation are reasonably necessary for achieving their objectives.
The default lapse period is doubled to 10 years.
Section 384A coastal permits
The expiration date for s 384A coastal permits is automatically extended by 20 years. However, consent authorities must commence a review of all permits by 30 September 2027, and issue a decision within 2 years of the review start date. The review process is set out in the Bill and provides for engagement with a narrow range of parties, and the ability for council to impose new or modified conditions, subject to the requirements or operation of port-related commercial undertakings.
Housing
MDRS now optional
Councils no longer ‘must’ incorporate the MDRS into residential zones; instead, they ‘may’ incorporate the MDRS.
Councils that have already incorporated the MDRS into their district plans may retain, remove or alter the MDRS from their plans.
Councils that have not incorporated the MDRS into their plans may either progress their Intensification Planning Instrument (IPI) (being a mandatory plan change giving effect to the MDRS) or request Ministerial approval to withdraw their IPI.
Heritage protections can be removed
A council may seek direction from the Minister for Arts, Culture and Heritage to use the streamlined planning process to prepare a planning instrument to remove heritage protection (except for that obtained through Heritage Order) from buildings and structures.
Farming and Primary Sector
Fishing rules in coastal marine areas simplified
New rules aim to reduce overlap between the RMA and the Fisheries Act, including to require detailed evaluation and notification where rules in plans seek to regulate fishing.
Freshwater farm plans overhauled
Farmers will face fewer audit and compliance requirements, intended to reduce costs and shift the focus to actions that support freshwater improvement, rather than strict form and process requirements.
Regional councils will oversee certification and compliance (including being able to notify the MPI of any concerns regarding an approved industry organisations performance), while the MPI takes charge of approving (and revoking) industry organisations, intending to streamline processes across the country.
Aquaculture
A national environmental standard that allows resource consents to be granted for an activity will also be able to state that changing or cancelling aquaculture consent conditions be treated as controlled or restricted discretionary activities, reducing hurdles for applicants.
Correction to permitted discharge rule
Section 70 (which was recently the subject of litigation within the farming sector, as we reported here) is amended so that councils may include rules in a regional plan that allow incidental discharges as a permitted activity where standards set within the rules will contribute to a reduction in adverse effects over time.
Natural hazards and emergencies
Tougher natural hazard rules
Natural hazard rules in proposed plans and those notified by the EPA will have immediate legal effect. There will also be explicit provisions for authorities to refuse consents or impose conditions if activities create or increase natural hazard risks. Decisions will factor in hazard likelihood, potential damage, and human safety effects.
Improved emergency responses
Emergency regulations will be able to be introduced more flexibly where needed, covering declared emergency areas for up to three years. These measures can include allowing or prohibiting activities, changing plan development processes, applying temporary stays to consent applications, limiting appeal rights, and extending time frames for lodging retrospective resource consents for emergency works and consent processing more generally.
These provisions intend for local authorities to use their resources on actual recovery works rather than administrative burdens under the current RMA provisions.
Consenting and compliance
Various consent processing changes are proposed, including the following.
Flexibility in information requirements
Information required to be submitted with an application for resource consent should be proportionate to the nature and significance of a proposed activity. A consent authority may accept an application that falls short of normal information requirements, if it considers that the information that has been provided is proportionate to the nature and significance of the activity.
Before making a further information request, a consenting authority must consider the necessity of the information sought, including whether the application can be assessed without it, and whether it is proportionate to the nature and significance of the proposal.
Fewer hearings
The Bill removes the requirement to a hearing on a resource consent application if a submitter (or the applicant) wishes to be heard. Instead, the consent authority must decide whether a hearing is necessary.
Conditions
An applicant may request that the consent authority provide it with draft conditions of consent ahead of a decision being made on its application. Such a request can be made once only. The applicant and any submitters on the application can provide comments on the draft conditions.
Crackdown on compliance
Various changes are proposed, including that:
In considering a resource consent application, a consent authority may take into account an applicant’s previous non-compliances under the Act. Based on the record of non-compliance, conditions may be imposed, or consent may be declined.
If a consent holder contravenes a condition of its consent, this can be a basis for the consent authority to review all conditions of the consent.
A local authority or the EPA may apply to the Court to revoke or suspend consent due to ongoing, significant, or repeated non-compliance with the Act.
Maximum fines be increased – $1,000,000 for a natural person (formerly $300,000) and $10,000,000 for other persons (formerly $600,000).
The maximum term of imprisonment is proposed to be reduced to 18 months (formerly 2 years).
Insurance against fines is prohibited.
We will continue to closely monitor the progress of the Bill. Please contact a member of the ChanceryGreen team if you want to discuss the proposed changes or if you may be interested in making a submission.
[1] Defined as pipelines, telecommunications networks, facilities used for the generation or conveyance of electricity, roading, cargo unloading structures, as well as activities or things later prescribed by regulations.
[2] Defined as activities relating to renewable energy generation (from solar, wind, geothermal, hydro or biomass sources) or electricity transmission.
[3] Defined as activities relating to facilities that produce long-lived wood products, products derived from wood fibers or wood energy bioenergy, or activities relating to wood storage.