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Brief Counsel

A lot to get to grips with in RMA Amendment Bill

25 January 2013

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The Resource Management Reform Bill runs to nearly 50 pages and will be far-reaching in its effects – streamlining consenting processes for medium and large projects but also front-end loading consent applications.

So far most of the attention has focused on the proposed one-off hearing process for the Auckland Unitary Plan but the Bill’s influence will extend well beyond Auckland.

Submissions are due by 28 February 2013

New six month timeframe for medium-sized projects

This amendment honours a National Party policy commitment to facilitate “medium-sized projects”, particularly large housing developments.  But the Bill proposes that the new six month time limits apply to all applications that are subject to public or limited notification.  

The proposed overall time limit for processing such applications is 130 working days (six months) for public notification or 100 working days for limited notification.  Key to achieving these time limits is the introduction of deadlines for when a hearing must be completed – in the case of publicly notified applications, within 75 working days after submissions close, and within 45 working days for limited notification. 

The amendments also include giving councils 20 (up from the current ten) working days to decide whether to notify an application.

Applicants should be aware that the six month consenting timeframe is not set in stone.  The 130 and 100 working day deadlines are subject to processes that “stop the clock”, as well as potential extension under section 37. 

The Bill amends the RMA’s provisions regarding how the consenting clock is stopped for certain processes and how deadlines are consequently deferred.  Many of these amendments are for clarification, or flow on from the proposed new time limits, but there are also some substantive changes.  For example, under the new provisions, the clock will only stop for the first further information request, provided the request is made before the Council’s notification decision, and even then only after a three day ‘grace period’ (to avoid delays where the applicant can provide the information quickly). 

The Bill also proposes new suspension provisions which will allow applicants to place notified applications on hold. 

In addition to delays associated with stopping the clock or section 37 extensions, the practical reality is that, as with existing deadlines, councils will sometimes simply fail to meet the statutory timeframes.  The Bill does not propose a new tool to enforce the new deadlines beyond the existing incentive to avoid fee discounts under the Resource Management (Discount on Administrative Changes) Regulations 2010.  Indeed, the Government is proposing to amend the regulations to reflect the new consenting timeframes1  which interestingly, could give councils more time than at present to process medium-sized project applications before applicants are able to claim discounts. 

Regional projects

The Bill proposes an easier path for directly referring major regional projects or projects involving “major investment” to the Environment Court.  Currently, the consent authority has broad discretion over whether to grant a direct referral request.  This discretion will be removed, other than in exceptional circumstances, where the value of the investment in the proposal is likely to meet or exceed a threshold amount. 

The threshold amount is to be consulted on and set in regulation.

New consent application and AEE requirements

The Bill seeks to “clarify and strengthen” the requirements for resource consent applications and assessments of environmental effects (AEE).2

Section 88 is amended and a replacement Schedule 4 inserted.  Essentially, it will be mandatory for consent applications to include the information required by the new Schedule 4 (which covers both AEE requirements and matters for inclusion in a consent application more generally). 

The existing matters that “should” be included in AEEs will become matters that “must” be included.  Applications must include details such as Part 2 and s104(1)(b) statutory document assessments, and additional information will be required for certain applications (such as a description of any related permitted activities to demonstrate why the activity is permitted).

The Bill also extends, from five working days to ten, the time period within which a consent authority can determine an application is incomplete, and failure to include the information in the new (broader) Schedule 4 will be grounds for rejecting an application.

Amending section 88 and Schedule 4 as proposed will increase workload at the front end of applications, but should help ensure that applicants have their "ducks in a row" before lodging. 

Strengthening section 32 reports

Expanded requirements for section 32 reports are proposed, including “more robust cost-benefit analysis”3, with more emphasis on the need to quantify costs and benefits and an express requirement to consider how the economy and jobs will be affected. 

The economic growth requirement is curious in that the cost-benefit analysis must include opportunities for economic growth that are anticipated to be lost – but not those to be gained.  This may be a matter for submission.

The level of detail required in a section 32 report must be commensurate with the scale and significance of the environmental, economic, social and cultural effects that are anticipated from implementing the proposal.

It remains to be seen whether the new section 32 report requirements will result in better reports.  Although quantitative analysis can be useful, ultimately the overall quality of the assessment will determine the value of a section 32 report – whether or not attempts are made to quantify costs and benefits.

Other changes

The package of RMA changes includes numerous other amendments, many of which are technical and for clarification purposes.  For example, the Bill also:

  • contains various amendments to improve the processing of proposals of national significance - including removing the period 20 December to 10 January from the nine month time limit within which a board must produce its final report
  • extends the RMA’s emergency provisions to “lifeline utilities” (by reference to the definition from the Civil Defence Emergency Management Act 2002)
  • clarifies that councils cannot adopt blanket tree protection rules, and
  • requires that the Environment Court must “regulate its proceedings in a manner that best promotes their timely and cost-effective resolution.”

Comment

The Bill contains some useful refinements to RMA processes.  Setting an overall consenting timeframe for notified applications should reduce delays, albeit that there will be much more 'wriggle room' with the six month timeframe than with the nine month national consenting process.  

Many of the proposed amendments are technical in nature and unlikely to be controversial.  There is, however, a considerable amount of detail buried in the Bill, so proposed changes could easily fall under the radar of affected parties.  Even key features of the Bill, such as the six month consenting timeframe for “medium-sized projects”, require close scrutiny to be properly understood.

If you need advice on how the Bill will affect you or assistance in preparing a submission, please contact the lawyers featured.

Footnote:

1  Regulatory Impact Statement, page 22.

2  Amy Adams "Further RMA changes to help project planning", 29 October 2012.

3  Hon Amy Adams, Resource Management Reform Bill - First Reading, 11 December 2012. 

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