The Resource Legislation Amendment Act 2017 contained three tranches of amendments to the Resource Management Act. The second tranche comes into effect this week.
Generally speaking, the amendments do not apply to applications lodged before 18 October, but do apply to applications lodged afterwards.
The key amendments relate to resource consenting:
Resource consent applications may be placed on a "fast-track" if they are for a controlled activity in a district plan (other than subdivision), or an activity that is prescribed in regulations. To qualify, the application must include an electronic address for service. The fast-track process will not be used if the application will be limited or publicly notified, a hearing is required, or if the applicant opts out. Fast-track applications must be processed within 10 working days.
Boundary activity process
This process applies to activities that only require resource consent because of a "boundary rule" infringement (e.g. yard or height in relation to boundary controls). Boundary activities must be treated as permitted activities if written approval is obtained from the relevant neighbours. Information about the site, site owners, proposed activity, and neighbours must be provided to the council. The council must confirm whether the boundary activity qualifies to be treated as permitted within 10 working days.
Marginal or temporary breach process
Councils have the discretion to treat activities as permitted if there is only "marginal or temporary" non-compliance with plan rules, the effects on the environment are no different from a compliant activity, and any effects on persons are less than minor. Council must give notice that the activity is permitted, which it can do after receiving a consent application or on its own initiative.
Comment – new ‘consenting’ processes
These new processes are intended to provide a more proportional process for very simple activities. However, we consider they are likely to have relatively limited value overall. In our experience, it is often council capacity, not the RMA process per se, that delays the consenting of these types of activities.
Changes to notification
The notification tests have been replaced with a new step-by-step process. Although the provisions look very different, many of the key tests have not been changed (e.g. the "minor" environmental effects test for public notification). The key substantive amendments are:
- There is no longer a general discretion for councils to publicly notify resource consent applications. Rather, councils must follow the strict step-by-step process to determine whether or not an application must be publicly notified.
- Public notification is precluded for:
- controlled activities
- subdivision of land (if it is not a non-complying activity)
- "residential activities"* (again, if it is not a non-complying activity), and
- activities prescribed in regulations (there are currently none).
- Limited notification is precluded for:
- controlled activities, and
- ctivities prescribed in regulations (there are currently none).
- A new requirement to limited notify an application where "special circumstances" exist.
* "Residential activities" are defined as activities that:
- require resource consent under a regional or district plan
- are associated with the construction, alteration, or use of dwelling-houses(s), and
- are located on land zoned for residential purposes under the relevant district plan.
These changes to the notification tests do not apply to designations.
Changes to appeal rights
There is no longer a right of appeal to the Environment Court against a council decision on a boundary activity, a subdivision, or a residential activity (unless the activity was classified as non-complying).
Comment – notification tests and appeal rights
These changes continue a trend of reducing public participation in resource consent processes. Well drafted applications which correctly address the statutory requirements will help to ensure that entitled applications get processed non-notified. In our view however, the latest set of amendments goes further than previous rounds of reform as applicants, as well as submitters, will have no right to appeal a council decision on certain activities.
Decision-makers are now expressly required to have regard to any environmental compensation or offsetting measure proposed or agreed to by an applicant for a resource consent or a designation.
Changes to test for imposing conditions
Resource consent conditions are now expressly required to meet one of three tests:
- The applicant agrees to the condition, or
- The condition is directly connected to an adverse effect of the activity or an applicable rule, or
- The condition is related to administrative matters that are essential for the efficient implementation of the consent.
Comment – offsetting and conditions
These amendments around offsetting generally reflect existing case law, and are therefore expected to have minimal impact overall. The tests for imposing conditions are useful but again tend to reflect the position in the case law in any event.