Cutting the Red Tape

The legislative response to the 22 February earthquake

March 2011

 

Following on from the legislative changes in September 2010, the Government has moved quickly since the 22 February earthquake to make further changes to the statute books. The purpose of these changes is to streamline the recovery process and ensure that the so called 'red tape' does not delay or frustrate the rebuilding of Canterbury. 


What has changed?

To achieve this goal, the Government has passed nine separate Orders in Council that amend a number of different statutes. Three of these orders introduce changes to the Resource Management Act 1991 (the RMA) and will remain in force until 31 March 2012.

Canterbury Earthquake (Resource Management Act Permitted Activities) Order 2011

This Order is targeted towards the following temporary activities associated with earthquake recovery:

  • Temporary accommodation for persons displaced from their normal place of residence or business; and

  • Temporary depots and storage facilities used for transportation and construction purposes.

In normal circumstances, these activities would likely require resource consent under the RMA. This Order removes that requirement and allows these activities to occur without the need for consent. To qualify for the exemption, the relevant council must issue a public notice specifying the location of the proposed activity and any standards that may apply.

The key limitation of this Order is that the activities must be of a temporary nature. The permitted activities may only continue for as long as the Order remains active (no later than 31 March 2012) and do not give rise to any existing use rights beyond this date.

Canterbury Earthquake (Resource Management Act) Order 2011

This Order makes it significantly easier for councils, State departments, and Crown agents to gain resource consent for "land remediation work". The key activities covered by this Order are:  

  • The protection, stabilisation and remediation of land to enable the use of land/structures to be resumed or to protection land/structures from damage;

  • The repair and reconnection of infrastructure; and

  • Flood protection work.

Where an application is made for one of the above activities, the usual notification provisions in the RMA do not apply. Instead the consent authority must exercise its discretion to consult any person that it considers will be adversely affected by the activity. Consultation may take place in any manner that the consent authority considers appropriate, provided that the following minimum requirements are satisfied:

  • The person must be invited to make written comments on the application; and

  • The person must be given no less than 10 working days in which to reply.

Once this consultation is completed, the consent authority will consider the application under the standard RMA provisions and decide whether to grant consent. The only change is that a non-complying activity may be granted consent even if it does not meet the usual 'threshold tests' in s104D of the RMA. There are no rights of appeal or objection to any decisions made on applications under this Order, except on the part of the applicant.

Canterbury Earthquake (Resource Management Act) Amendment Order 2011

The final Order relating to the RMA extends some of the time frames for powers and exemptions introduced by the earlier RMA Order passed after the September earthquake. This provides the following benefits to councils:

  • Extends the time for the expiry of resource consents held by councils and dates specified for compliance with those consents;

  • Removes the obligation for a council to pay a discount for the delayed processing of applications;

  • Provides an exemption from the council's usual record keeping and enforcement duties where it is not reasonably practicable to fulfil those duties in light of the earthquake; and

  • Clarifies the powers that apply to persons undertaking emergency works under the RMA.

In addition to the above, this order extends the emergency powers to activities at the Kate Valley landfill so that it is able to operate outside the conditions of its resource consent where required to help respond to damage from the earthquake.


How does this help?

In summary, these three orders provide significant benefits to local councils to help them undertake recovery work associated with the earthquake. This applies to councils in the immediate vicinity of the earthquake, including the Canterbury Regional Council, Christchurch City Council, Selwyn District Council, and Waimakariri District Council.

For these councils, temporary accommodation, depots and storage facilities can now be established as permitted activities without the need for resource consent. Land remediation work that does require consent will gain the benefit of a streamlined process that is intended to reduce cost and delay. In addition, the powers and exemptions provided after the September earthquake have been extended to ease the administrative burden over the next 12 months.

Improving the ability of councils to get on with essential repair and recovery work will obviously provide benefits for those worst affected by the earthquake. However the Orders do not change the usual RMA process for businesses and individuals that may be facing new challenges as a direct result of the earthquake.

For example, many businesses have had to relocate to new premises or contemplate significant rebuilding work on existing sites. These activities may well trigger the need for resource consent, with applicants having to go through the usual consent processes that do not gain any benefit from the current orders. It remains to be seen whether further Orders will be passed to provide assistance to businesses and individuals directly affected by the earthquake.

 


Disclaimer: This is a brief summary for information purposes only and is not legal advice.

 

Posted on Thursday 10th March, 2011 at 02:20 pm