RMA Reform - Was it worth the wait?
A review of the Resource Legislation Amendment Act
After a drawn-out process, the Resource Legislation Amendment Act 2017 (RLAA) finally received royal assent on 18 April 2017. The purpose of the RLAA is to provide practical improvements to the New Zealand resource management scheme through the amendment of five different acts.
Although it is easy to get lost in the detail, the main question on our mind is whether the RLAA changes are likely to make a meaningful, practical difference to the resource management system. We explore this question below with references to the key changes that have occurred in relation to the preparation of plans and the processing of resource consents. Please note that there are a number of other changes to RMA and related legislation that have not been addressed in this article.
Preparation of plans
Prior to the RLAA, a local authority only had one option available to them in respect of preparing or altering a plan or policy statement. One of the key amendments under the RLAA is the introduction of the alternative processes that are now available to local authorities when reviewing, changing or preparing a plan/policy, as discussed below.
The purpose of the collaborative process is to enable community participation prior to notification to achieve greater community support and limit the opportunity for debate and appeals that often arise at the tail end of the process. The intention is that the collaborative process will result in the establishment of plans/policies that are much more reflective of community views.
The key features of the Collaborative process are:
- The appointment of a ‘collaborative group’ that reflects a balanced range of community interests, values and investments;
- The collaborative group is responsible for delivering a consensus view on the issues it is given to consider in consultation with the community;
- The proposed plan / policy must give effect to the consensus position reached;
- Notification, submissions and hearing is before an appointed review panel who then provides recommendations;
- The final decision then sits with the local authority – any departure from the consensus position requires further input from the collaborative group;
- Any rights of appeal are limited to a rehearing (with limits on new evidence) where recommendations and/or the consensus position is not followed or an appeal on questions of law.
The Collaborative process has merit in principle, however we are not entirely convinced it is workable in practice for the following reasons. Firstly, there are potentially significant upfront costs for local authorities so the collaborative process, only makes sense financially if it avoids further costs later on in the process through the avoidance of appeals. This outcome is only achieved if a consensus position is reached by the collaborative group and the final decision is consistent with that consensus position.
Without wanting to be unduly pessimistic, our expectation is that it may be very challenging to reach a consensus position on some issues, despite the best intentions of the collaborative group. If consensus is not achieved, then arguably the collaborative approach will have achieved very little as the balance of the process (including potential appeals) will effectively be unchanged from the standard RMA approach.
Finally, the extent of public participation in the collaborative process is unknown. If it is intended that full public participation occurs similar to the existing Schedule 1 process, then there seems to be no practical improvement in opting for the collaborative process as it still involves a two-stage process. On the other hand, if participation is less than what the public were entitled to prior to RLAA, there is a risk that people’s rights to effectively participate will be constrained given the weight that is given to the outcome of the collaborative phase.
The streamlined process allows local authorities to use a streamlined planning process for a policy or plan. The streamlined process can only be used with the approval of the Minister and if the local authority is satisfied that the proposed policy or plan:
- Will implement national direction;
- Is urgent as a matter of public policy;
- Is required to meet a significant community need;
- Deals with an unintended consequence of a policy statements or plan; or
- Requires an expeditious process for a reason comparable to the above.
The Minister determines the process that will be followed, which must include some provision for notification and written submissions. Once the process has been completed, the plan or policy must be submitted to the Minister for approval who may approve, decline or refer back for reconsideration. There are no appeal rights under the streamlined process other than in respect of decisions on designations, notices of requirements and heritage protection orders.
The obvious concern with the streamlined process is that it provides local authorities with less control by allowing the Minister to determine the process that will be followed and giving him/her the final say on whether to approval the plan. We expect that this is likely to deter local authorities from utilising the streamlined process unless urgency is required to address an unanticipated situation.
National planning standards
Perhaps the area of greatest potential benefit in relation to the preparation of plans is the introduction of national planning standards. These standards are able to set the content and structure of plans including objectives, policies, rules and definitions. The intended outcome is that the standards will result in consistently drafted plans across New Zealand and avoid re-litigating the same issues in different locations.
Central government has full discretion as to what content is included in the national planning standards. This creates some uncertainty as to how much detail the standards will contain and how far they may stretch. A further issue with national planning standards is that they have the potential to prevent issues being determined at a local level. This can be problematic in relation to issues that require, and indeed benefit from, local input.
Although we consider that national planning standards could be of significant benefit to the resource management system, they will need to be carefully monitored to ensure the standards do not extend beyond their purpose and contain an adequate amount of detail/direction as well as allowing for local input where appropriate.
Resource consent processes
The following changes to resource consent processes will take effect from 18 October 2017.
Fast track process
The RLAA introduces a ‘new’ fast track process which requires a consent authority to make a decision on certain types of consent within 10 working days. Although this seems beneficial to applicants, it is unlikely to make any practical difference in many parts of the country as a number of consent authorities already adopt a 10 working day fast track process for resource consents for simple applications.
Under the RLAA you can now avoid the need for a resource consent for defined ‘boundary activities’ where written approval has been obtained. This consent exemption process requires information on the activity to be provided and involves an assessment by the consent authority before the consent exemption is approved. Although this will reduce the total number of consent applications, we do not consider that it will have a significant impact for either applicants or consent authorities as the key documentation and processing tasks remain very similar, albeit under a different name.
One can also avoid the need for resource consent where a ‘marginal or temporary non-compliance’ breach occurs. This type of consent requires you to demonstrate that the adverse effects caused by the breach are less than minor and the same as a permitted activity. The immediate issue with this change is that ‘marginal’ or ‘temporary non-compliance’ are not defined, which creates uncertainty as to when an exemption might apply. It also creates the risk of shifting the benchmark if it becomes widely known that rules can be breached up to a certain level without the need for consent.
Prior to the RLAA, determining what type of notification was required for resource consent was based on an assessment of effects. Although the notification sections have been rewritten, this effects-based approach remains largely unchanged for most activities.
What has altered is that the RLAA is more directive about notification outcome for certain types of activities. For example, all controlled activities must be non-notified, and applications for boundary activities, subdivision, and residential activities (except where non-complying) must not be publicly notified.
Although these changes may seem significant, we consider that in the vast majority of circumstances, the notification outcomes that are now dictated by the RLAA are the same as what would have occurred under an effects based assessment. What this means is that the change will provide greater certainty about notification for certain types of applications, but are unlikely to result in radically different outcomes compared to what currently occurs.
Perhaps one of the more significant changes under the RLAA is the removal of appeal rights for certain activities (boundary activities, subdivision and residential activities (unless non-complying)). This change limits participation in that those submitting on the consent will not have the opportunity to appeal the decision. While this might be seen as a positive outcome for an applicant, it also means the applicant is prevented from challenging the decision of the consent authority that is does not accept or agree with.
The amendments introduced by the RLAA are clearly not as significant as those original proposed when this phase of RMA reforms was first commenced. It is therefore difficult to ascertain whether many of the changes will have any real practical impact on the resource management system, particularly as many of the changes simply reflect existing best practice.
In our view, the most significant and practical change is the addition of the national planning standards, which have the potential to create clear national direction and consistency of plans / policies throughout New Zealand. However, in order for these standards to be effective, they will need to contain an appropriate amount of detail and be very clear on direction.
Only time will tell of the true impact of these changes and whether they were worth the wait. Given the seemingly every-changing nature of the RMA, a cynic might suggest that the RMA will be reformed again or completely rewritten before the impact of the RLAA changes can be fully assessed.
Disclaimer: Please note that this is a brief summary for information purposes only and is not legal advice
Posted on Wednesday 28th June, 2017 at 04:10 pm