Meaning of trade competition and effects of trade competition

Clause 139 would insert a new Part 11A “Act not to be used to oppose trade competitors” into the principal Act. New sections 308A to 308H would limit the opportunities for trade competitors to make submissions, to be party to proceedings in the Environment Court, or to bring appeals under the Act. Under new Part 11A third parties (or “surrogates”) could not be used to disguise the identity of trade competitors, and any party who had obtained a declaration that a person had contravened Part 11A could seek damages from that party.

As introduced, the bill does not define “trade competition”. Many submitters were unclear whether the term “trade competition” would encompass parties competing for scarce natural resources, business interests that might be adversely affected as a result of environmental effects, and local authorities who might wish to make submissions on plans, including those of neighbouring authorities.

While we do not wish to recommend any changes to the policy intent we did attempt to find a suitable statutory definition of “trade competition” and “effects of trade competition” to provide greater clarity. However, we acknowledge the great difficulty of defining these terms, and the risk that any definition could lead to unintended consequences and a reinterpretation of the law as it currently stands.

We are advised that “trade competition” as the term is currently used in resource management case law is not competition for use of natural resources that are not in private ownership, and that the “effects of trade competition” do not include significant adverse environmental impacts arising from effects of businesses, and that this is consistent with the intention of the trade competition measures in the bill. We consider that there is adequate guidance in existing case law and the trade competition reforms do not seek to change this. Therefore we reject suggestions that trade competition and its effects should be defined by statute.

We do recommend deleting clause 31(3) of the bill, which would have provided specifically for the authority to strike out all or part of a submission on a resource consent application or plan on the grounds that the submitter was not directly affected by an adverse environmental effect of the application where the submission related to trade competition. We consider that the current provisions under section 41C(7) of the principal Act provide adequate powers for the authority to strike out submissions that seek to abuse the process and it is unnecessary to add further grounds for striking out.

Surrogacy provisions

New section 308E, as inserted by clause 139, would prohibit the use of another party (a surrogate) by a trade competitor to disguise their identity in appeal proceedings. New section 308F would require the appellant, and other parties to the appeal, to disclose at the start of, or during, appeal proceedings whether or not they had directly or indirectly received help from a competitor to that trader so that all parties do not have to waste time and money fighting an appeal that should not have proceeded because of trade competition motives (albeit disguised by the use of a surrogate).

We recommend that new section 308F(b) be amended to provide that the surrogate must “knowingly receive” direct or indirect help from a trade competitor to bring the appeal, or be a party to the appeal, for the restrictions on appeal (set out in new section 308D) to apply.

Although the declaration and damages regime set up under new sections 308G and 308H (in the bill as introduced) would not apply to innocent breaches, we consider it possible that the provisions might capture anyone who was unaware that they had indirectly received help. Most of us believe that the recommended amendments to new sections 308E and 308F would address our concern that community groups might unwittingly contravene the sanctions against surrogacy when fundraising, or be forced into the impractical situation of requiring all donors to a street collection to sign their names, or of having to provide a list of donors to the court, or that innocent parties might be captured where they agreed to share an expert witness or to narrow the grounds of appeal by joint memorandum of counsel.

Limits on making submissions

New section 308B proposed limits on the rights of trade competitors to make submissions. We recommend amending new section 308B(3) to refer to limits on submissions for call-in in Part 11A.

Declaration on trade competition by the Environment Court

New section 308G would empower the Environment Court to declare that a trade competitor (or their surrogate) had contravened the trade competitor provisions and require the court to order costs against the trade competitor or their surrogate, if a declaration was made.

Under section 308G as introduced, parties could seek a declaration from the Environment Court for up to 10 years after a contravention. We regard this time-frame as overly generous and recommend reducing the time limit to six years to bring it into line with the standard limitation period for commencement of proceedings.

We also recommend deleting new sections 308G(6) and (7) and inserting new section 308GA to require the Environment Court to take into account any award of costs previously made in relation to the proceedings when awarding full costs which follow from a declaration.

Proceedings for damages in the High Court

New section 308H provides that damages may be sought in proceedings before the High Court where the Environment Court finds a trade competitor has contravened the provisions in new Part 11A. The time-frame for bringing an application to the High Court is six years after the date of the declaration.

As introduced, the bill implies that the High Court would have discretion as to whether to award damages. We consider that the award of damages should flow automatically where there is a declaration of trade competition in the Environment Court and proceedings are brought before the High Court.

We accordingly recommend substituting the word “must” for “may” in new section 308H(4), to make it clear that damages would follow in the High Court where the Environment Court declared that the trade competition provisions had been contravened. The High Court would retain discretion as to the amount of damages awarded.

We do not support suggestions that the Environment Court is better equipped to award damages. The RMA includes no provision for awarding damages as compensation for economic loss caused by another person, and the High Court already has the appropriate expertise to deal with such matters.

Awarding costs

Clause 134 substitutes a new section 285 in the principal Act to extend the circumstances when the Environment Court may award costs to include the court’s costs and expenses and those of other parties for any contravention of the new sanctions against trade competition. Where proceedings commence by way of direct referral, there is a presumption that the Crown’s costs would be paid by the applicant. There is also a presumption that costs would not be awarded against third parties where proceedings were directly referred.

We recommend amending clause 134 to ensure that costs cannot be awarded twice under section 285 in relation to the same proceedings. This amendment would provide consistency with changes recommended to new section 308GA, as inserted by clause 139 of the bill.

For fairness and consistency, we also recommend applying the same presumption for costs for direct referral under sections 87E, 198D, and 198K to proceedings for proposals of national significance which the Minister decides to refer to the Environment Court for a decision under section 150AA of the principal Act.

Security for costs

Clause 133 would effectively reinstate a former power of the Environment Court to order, upon application, that appellants put up security for costs before proceeding with their appeals. We do not recommend any change to this clause.

We received many submissions on this clause, mostly in opposition, the main reason being its potential to restrict public participation in resource management decision-making to those who can afford to raise security.

We note that the Environment Court has always been able to award costs in appeal proceedings, but the power of the court to require security for costs has varied. From 1996 to 2003, when the court did have powers to order security for costs, it was not automatically required upon lodgement of an appeal. Indeed, we understand that the court required security in relatively few instances.

In our view, the biggest barrier to public participation would be the perception that an order for security for costs is automatic, and this could be used to intimidate parties who might otherwise wish to appeal. We considered whether statutory criteria should be set to guide decisions about requiring security for costs but decided not to recommend this. The Environment Court would draw upon case law reflecting its previous practice in determining whether to order security for costs. One of the factors the court would be likely to consider is whether an order for security might prevent the appellant from proceeding with a bona fide appeal. We also believe that wide education as to how and when courts award security for costs should counteract concerns that the threat of security for costs might be used to intimidate potential parties or appellants.

Parties to proceedings

Clause 131 seeks to limit third-party standing regarding RMA proceedings. It replaces sections 274(1) and (2) of the principal Act, to make the Attorney-General the only person able to represent relevant aspects of the public interest. A person who had an interest in proceedings greater than the general public might be a third party provided that they did not infringe trade competition provisions. Submitters on applications could still be a party provided that their submission was made about the subject matter of the proceedings and did not infringe the restrictions relating to trade competition. The time-frame for parties to notify their intention to join court proceedings under section 274 would be reduced from 30 working days to 15 working days.

Many submitters opposed the proposed repeal of section 274(1)(d), which allows a person representing a relevant aspect of the public interest to become a party to proceedings. Their main concerns were similar to those expressed about the reinstatement of the power to order security for costs (clause 133), and in particular related to the risk of curtailing opportunities for community groups to participate at least cost. Some submitters were also concerned that the shorter time-frame for filing an application to become a section 274 party would not allow enough time to make an informed decision about joining an appeal.

We would be concerned if clause 131 did not adequately protect the public interest, or if it resulted in the exclusion of anyone with an interest that is greater than the public interest generally. In this regard, we note that clause 131 would allow the Attorney-General to represent relevant aspects of the public interest, the Minister for the Environment to be a party, and that a wide range of parties, including iwi, are likely to still meet the “interest that is greater that the general public has” test under section 274. Section 274(6) will still require the court to have regard to statutory acknowledgments under claims settlement Acts when determining whether a person has an interest in the proceedings greater than the general public has.

We understand that the intent of clause 131 is to exclude parties who would otherwise not be affected more than anyone else, and who are trade competitors, unless they are directly affected by an adverse effect on the environment, and the effect does not relate to trade competition or the effects of trade competition. In this regard, we note that there is existing case law to assist the court in determining what constitutes an interest in the proceedings that is greater than the general public has.

Most of us consider that clause 131 does not require other than minor amendment and we therefore recommend only minor amendments to clause 131.

Restructuring this part of the bill

A number of submitters made the point that the provisions for proposals of national significance were difficult to understand in the bill as introduced. We agree that the way these provisions have been set out is complicated, and therefore recommend restructuring the provisions in clauses 91 to 106.

We recommend deleting clauses 91 to 106 of the bill as introduced and replacing them with new clause 91, which would repeal sections 140 to 150AA and insert a new Part 6AA into the principal Act with a new heading “Proposals of national significance”.

New section 140 (in new Part 6AA) outlines the general scheme for proposals of national significance. It explains the procedural implications of the Minister’s call-in powers and the three ways by which a matter might come before the Minister for a decision on whether to call in the matter (new sections 140 to 149ZE in new Part 6AA). The three pathways are as follows:

• •If a matter is lodged with a local authority, the Minister may decide to call in a matter acting on his or her own initiative.

• •If a matter is lodged with a local authority, a local authority or an applicant may ask the Minister to intervene or call in a matter.

• •An applicant may apply directly to the EPA for a matter to be called in and the EPA will recommend to the Minister whether it should be called in.

If the Minister so decides the matter would then be determined by a board of inquiry or the Environment Court rather than through the standard process. The new process pathways are illustrated in the diagram attached to this report as Appendix B.

We consider that the restructuring of provisions into new Part 6AA would improve clarity and workability and ensure that the timelines and processes for the separate pathways now available to applicants are aligned.

Meaning of applicant and local authority

Clause 91 of the bill as introduced proposes amendments to the definitions of “applicant”, “local authority”, and “matter” to enable local-authority-initiated plan changes and variations to be called in.

For clarity, we recommend amendments to ensure that a local authority could request an application for call-in only with respect to a change or variation to its own plan (new section 141).

We recommend that the definition of “matter” in new section 141 be extended to include notices of requirement to alter a designation or heritage order, and changes (or cancellation) of consent conditions, as these matters may be lodged directly with the EPA.

Time-frame for recommendations by the EPA

As introduced, new section 141AAB would allow a maximum of 10 working days (once all information was received) for the EPA to assess an application and make a recommendation to the Minister.

The EPA would be required to assess the application within this time for the purpose of making a recommendation to the Minister and to ensure that the application is ready for notification. Because matters of national significance are likely to be complex and it would be difficult to properly assess an application within 10 working days (a time-frame based on standard processes for local authorities) we recommend allowing the EPA 20 working days to make its recommendations to the Minister on calling in an application or referring it back to the local authority (new section 147). We also recommend that the EPA’s powers to request further information and commission reports not be limited to information required to make a recommendation to the Minister. The EPA should be able to ensure that the application is as complete as possible before it is notified.

Time-frame for Minister’s decision

We recommend clarification to the limitations on call-in (in new section 148). This would mean that a matter could not be called in more than five days after the closing date for submissions, rather than up to five working days before the hearing commences. This is more consistent with the time-frames that would apply to direct referral (clause 60).

Minister’s power to intervene

We recommend amending clause 94 (now new section 144(2) in new Part 6AA) to ensure that, where the applicant had not requested intervention, the Minister could not exercise powers of intervention without having regard to the views of the applicant.

As introduced, clause 94 would not require the Minister to have regard to the views of an applicant when deciding whether to call in a matter. We consider, however, that the Minister should have regard to the applicant’s views, as this decision has significant implications for the applicant, especially when the request comes from the local authority and not the applicant. Although we understand that this has in fact been the practice, we recommend that it be explicitly provided for by way of an amendment to section 141 of the principal Act.

Minister’s call in powers for proposals of national significance

Clause 95 proposes additional factors that the Minister might consider when deciding whether a proposal was of national significance. These provisions are now included in new section 144(1) (inserted by clause 91).

We recommend clarifying that the Minister may take into account network utility operations that cross district council boundaries. As introduced, clause 95 would apply only to any network utility operation that extended, or was proposed to extend, to more than one regional (council) boundary in New Zealand. We consider that the amendment would reflect the broader policy intent of including infrastructure projects which, while local, are important to the operation of a network of national importance.

We recommend that the bill also make it clear that the Minister could consider whether the proposal would assist the Crown in fulfilling its obligations or functions regarding public health, welfare, security, or safety. This would encompass projects that contributed to the wider public good, for example, nationally significant projects such as the building of public institutions or other facilities that have clear public benefits but also generate local adverse effects or concerns (such as a regional prison).

We acknowledge that the factors required to guide the Minister’s decision-making are very broad and do not offer much certainty to prospective applicants. We believe that there should be guidelines to provide more certainty for applicants as to what projects the Government may consider calling in.

Role of Minister and EPA

We recommend further amendments to clarify the respective roles of the Minister and the EPA. The Minister would make substantive decisions on whether to call in a matter and whether to refer it to a board of inquiry, or the Environment Court, whom to appoint to a board of inquiry, and whether to extend the time-frame for a board to report on a matter. The EPA would carry out all administrative tasks, such as public notification, calling for and receiving submissions, and giving notice of the board’s decision.

Role of local authority where a matter is called in

The bill does not address the role of a local authority where a matter has been called in. By default the local authority would have the same status as any other submitter on an application that was called in. The bill does not explicitly state whether technical experts from a local authority could become advisers to the board, or could appear only as witnesses at a hearing.

To address concerns about the lack of an explicit role for local authorities in the call-in process, we recommend that new section 141AAE (now new section 149F) be amended to require the EPA to commission a planning report from the local authority to contextualise the application. Such reports would be required to outline the planning framework, to set out the key planning issues, and to advise on the status of relevant activities. We consider that this mechanism would provide for a role for local authorities in providing information to boards of inquiry, whilst preserving the independent status of any staff who appear as expert witnesses at a hearing. The cost of preparing the report, which would be supplied to the board and all submitters, would be borne by the applicant.

We note that a board of inquiry could choose to commission a further report (from the relevant local authority or otherwise) following submissions on the key points raised by submitters and containing advice on options for addressing such matters.

Applications that are referred back to a local authority

New section 141AAF (now new section 149Z) would set out how a matter that has been referred back to a local authority should be dealt with.

We recommend stating expressly in new section 149Z that local authorities do not have the discretion to determine that a referred application for resource consent was incomplete and to return the application under the provisions of section 88(3) of the principal Act. This amendment would reduce the opportunity for wasting time on any applications that were lodged with the EPA but were referred back to the local authority. It would not prevent the local authority from seeking further information if it considered it necessary for assessing the effects of the proposal.

Time-frames for changes and variations

Clause 95 would clarify that where any proposals of national significance that related to changes or variations were called in, the local authority could withdraw the plan change at any time before notice was given of a hearing, but could not initiate a further change or variation until a board of inquiry had made its decision. These provisions are now included in new section 149H of new Part 6AA.

We do not consider that it is sufficiently clear that these provisions apply to both changes and variations, and recommend that section 149H of new Part 6AA be reworded to remove any ambiguity.

Boards of inquiry

Clause 100 would insert new sections 146A to 146D into the principal Act to prescribe how boards of inquiry are to be appointed, their powers in respect of a request for a plan change application or a request for a regional plan which had been called in before the local authority had decided whether to accept the request, the process a board must follow in both sets of circumstances, and the way a board conducts hearings for the purpose of considering any resulting proposed plan or change. These provisions are now included in new sections 149K to 149O of new Part 6AA.

We recommend amending new section 146A (now new section 149K) to clarify the role of local authorities in the appointment process. As introduced, new section 146A implies that the local authority would have a right of nomination. We were advised that the policy intent is that the Minister would be required to seek suggestions from the relevant local authority, but would be free to appoint a member whether or not that person had been suggested by the local authority. The Minister’s appointments must be guided by the board’s need for knowledge, skill, and experience related to RMA matters, tikanga Māori, and the local community.

In the bill as introduced the Minister could only appoint a board of inquiry after public notification of the matter. We are concerned that it might delay the process to have to wait until notification to appoint the board. We recommend amending clause 99 (now new section 149J in new Part 6AA) to require the Minister to appoint a board of inquiry as soon as practicable after making the decision to call in a matter, to ensure that the appointment process is timely.

We also recommend a further amendment to expand the potential pool from which a chairperson of an inquiry might be appointed. Under the bill as introduced, the Minister must appoint three to five members and the chairperson must be a current, former, or retired Environment Judge. We consider that a retired High Court Judge should also be able to chair a board of inquiry. This would expand the pool of potential chairs with practical experience in the Environment Court or relevant experience in the High Court, without compromising the integrity of the process (now new section 149J).

Board considering requests for regional plans and plan changes

To avoid ambiguity we recommend amending new section 146C(2) (now new section 149M) to clarify that the board’s decision in question at this point is only whether to accept or reject the request under new section 146B(2)(a)(i) (now new section 149ZB). This provision does not refer to the substantive decision the board would be required to make subsequently on the plan change itself.

We also recommend that the board be required to seek the local authority’s views on a private plan change request when deciding whether to accept or reject it, as the local authority would have expertise and knowledge of the plan (in new section 149M). This change would address the concerns of local authorities about the integrity of the plan, and would also provide a better information base for the board’s decision.

Conduct of inquiry

Clause 101 would replace section 147(4) of the principal Act with a new clause adding several new requirements to reflect changes to the way that inquiries would be conducted once the bill took effect.

We recommend amendments to clarify the procedural powers of a board in conducting its inquiry (section 149L) and the requirements for its decision. The board would have powers as a hearing authority, but we considered that it should also have powers to request further information, commission reports, hold pre-hearing meetings, and refer matters to mediation. The recommended amendments would allow for these functions by giving the board the relevant powers of a consent authority.

We recommend setting out the requirements for the board’s decision in new section 149P. The requirements would mirror those that would apply to a local authority if it were determining the relevant matter, except that the board would make a decision on notices of requirement (rather than the requiring authority) and the board could make amendments to a council plan beyond issues that were raised in submissions. This would be similar to the jurisdiction of the Environment Court in respect of appeals on notices of requirement and plan provisions.

Reporting requirements for boards of inquiry

We recommend simplifying the reporting requirements for boards of inquiry as set out in clause 102 (now new section 149Q in new Part 6AA). Under the bill as introduced, boards would be required to invite comments only on minor and technical aspects of their draft reports. We consider that comment should also be permitted on any perceived omission or on the wording of any proposed conditions specified in the draft report, and recommend the insertion of new section 149Q accordingly.

Regarding the scope of the board’s draft report, we do not think it necessary for boards to report on every principal issue, and recommend that they be required to report only on the principal issues in contention. We consider that boards should also be able to include recommendations in their draft reports on the need to issue or revoke a national policy statement or New Zealand coastal policy statement, and for local authorities to consider changes to regional plans and policy statements. We would expect that such reports would be written in plain English.

Time-frame for producing a final report

As introduced, the bill would require a board to make its final decision within nine months of public notification of the matter. Clause 103 would allow the Minister to grant an extension for producing its final report of no more than 18 months from the date of public notice of the direction.

We recommend amending clause 103 as introduced (now new sections 147, 149R, and 149T) to allow the EPA to recommend to the Minister the need to extend the time-frame, and the length of the proposed extension, at the beginning of the process in tandem with its recommendation on call-in. We consider that it would be helpful for the Minister to have this recommendation at the outset so that he or she could consider whether to provide for an extended time-frame and thus enable the board of inquiry to plan accordingly.

We recommend that the Minister be allowed to grant an extension beyond the 18 months only if the applicant agrees (new section 149T). In such cases, we recommend clarifying that the applicant, the relevant local authorities, submitters, and all parties must be notified of any extension. We would expect that this power would be used only in special circumstances; it is not intended as a licence to protract inquiries unnecessarily.

This would address our concern that the nine-month time-frame could be too tight for proposals of national significance, especially since it would be effectively reduced to seven months of inquiry once requirements for public notification and circulation of the draft report were taken into account. Because call-in would be used for the more complex proposals involving a combination of matters (consent applications, notice of requirement, and private plan changes), we consider that rigid adherence to the nine-month time-frame could compromise the hearing process or the quality of the decision.

Costs of process

Clause 105 as introduced would enable the Minister to recover from the applicant the costs incurred by the EPA. We recommend that the bill be amended to allow the EPA to recover its costs directly (new section 149ZD).

We note that under new subsection 149B(3A) of the principal Act, the Minister could not recover costs incurred by the EPA before lodgement. Submitters raised valid questions about the implications for cost recovery where applications are called in and referred to the Environment Court. We agree that the subsection as introduced appears to provide that neither the Minister nor the EPA may recover costs for applications that are called in and referred to the Environment Court for a decision. We recommend rectifying this.

For consistency, we consider that the Environment Court should be able to recover from the applicant the costs of hearing and deciding a matter that has been called in and referred to it. We therefore recommend amending clause 134 to apply a presumption that costs will be awarded by the Environment Court against the applicant when hearing and deciding a matter that has been called in.

We note the concern expressed by some submitters that councils would not be able to recover their costs of participation in cases where an application was called in, which might result in substantial costs being passed on to ratepayers. We do not agree that councils should be able to recover the costs of participation from the applicant where the council has chosen to become a submitter, and accordingly recommend no further changes. We note that the recommended amendments would require the EPA to commission a planning report from the local authority before public notification, and the board would also be able to commission a further planning report from the local authority if it wished. Costs on councils for providing reports in such circumstances would be recovered from the applicant, as would any costs arising from further reports commissioned by the board.

Delegation of functions by Ministers

We recommend amending clause 21 to extend the list of ministerial powers that cannot be delegated to include the Minister’s powers to make decisions in response to recommendations of the EPA, and a consequential amendment to section 24 of the principal Act.

Clause 21 would also allow the Minister for the Environment to delegate functions, powers, and duties associated with certain parts of the call-in process such as notification, the receipt of submissions, and provision of information to a board appointed to conduct an inquiry. We recommend that clause 21 be amended to allow the Minister to delegate these functions to the EPA to ensure a smooth process between the EPA and the board of inquiry.

Ministers may direct regional councils to review regional plans

We recommend amending clause 19 to make it clear that the power to direct the review of regional coastal plans would rest solely with the Minister of Conservation, as provided for in new section 25B(2), and not the Minister for the Environment.

As introduced, clause 19 would insert new section 25B to enable the Minister for the Environment to direct a local authority to review part or all of its regional or district plans, and the Minister of Conservation to direct a review of regional coastal plans. Currently the Minister for the Environment can direct local authorities to prepare a regional plan, or to make a plan change or variation to a regional plan or district plan.

This provision would provide a back-up to ensure that regional and district plans remained up-to-date when the statutory obligation for regional and territorial authorities to review their plans every 10 years was removed by virtue of clause 56 (as amended) of the bill.

We understand that it was not intended to empower the Minister for the Environment in new section 25B(1) to direct the review of regional coastal plans and we recommend making this quite clear.

We considered but rejected a suggestion that new section 25B should include criteria to guide the Ministers’ decision on the need to direct a review. We consider that very different circumstances will apply in each case, and any guidelines should not be enshrined in law.

Removal of obligation to review district plans every 10 years

Clause 56 would remove the mandatory requirement to review district plans every 10 years, with the effect that district plans would be kept under constant review. We note that the bill contains no similar provision to remove the parallel review requirement for regional plans, and agree that consistency between comparable plans is desirable. We accordingly recommend that the review provisions apply equally to regional plans, regional coastal plans, regional policy statements, and district plans.

We also recommend that clause 56 be further amended to allow local authorities to review their plans in any way they like provided that each provision of the plan is reviewed at least once every 10 years.

Combined regional and district planning documents

Clause 57, as introduced, seeks to enable and encourage local authorities to produce combined planning documents. It sets out a process for preparing, implementing, and administering combined regional and district planning documents under new section 80 of the principal Act. It would also require local authorities to consider combining plans where practicable.

We recommend that clause 57 be amended to require that combined planning documents identify clearly the provisions in the document that are to be treated as provisions of a regional policy statement, regional plan, regional coastal plan, or district plan, and the local authority responsible for enforcing the respective provisions.

Legal effect

Clause 59 would insert new sections 86A to 86G into the principal Act to change the point at which rules under a proposed plan and a proposed plan change are deemed to have a legal effect (and so must be complied with). As introduced, new section 86A would prevent new rules from having legal effect until decisions on submissions relating to those rules had been notified, unless specific exemptions regarding the protection of vulnerable resources applied. A local authority could also apply to the Environment Court to allow rules not covered by an exemption to take effect earlier.

Many submitters queried whether clause 59 would provide more certainty about which plans would apply to any assessment of proposals—operative plans, or proposed plans, or variations of proposed plans, severally or jointly.

We understand that the intent of clause 59 is to reduce the need to assess proposals against proposed rules that had not been through a public submission process, and to avoid the need to apply rules that were poorly drafted. However, we are concerned that in practice clause 59 might result in the development of a complex maze of rules. Nor are we convinced that clause 59 would provide a more robust regime than the status quo.

We therefore recommend amending clause 59 to set out the processes for triggering legal effect more clearly and to require local authorities to identify in their plans which rules have immediate effect, so that people do not have to work it out for themselves (new sections 86A to 86G). The bill as introduced specified rules that “expressly protect” particular resources. We believe that the wording, in respect of the resources of water, air, or soil (for soil conservation), has potential for litigation and recommend that rules that have immediate effect are those that “protect or relate to” these resources.

Appeals on plans restricted to points of law

The bill seeks to reduce the time involved in developing and adopting plan documents, and to reinforce the role of local authorities as the primary policy-making bodies. Clauses 132 and 136 would restrict appeals on plans to points of law unless an appellant successfully applied for leave from the Environment Court to appeal on merit. As introduced, the grounds for seeking leave to appeal a plan on the merits are broad and relate to impacts on property rights, the clarity of local authority decisions, and whether a decision fails to give effect to Part 2 of the principal Act.

We received many submissions on these clauses, most of which opposed their provisions on three grounds: the potential for greater costs and delays, the removal of the right to appeal on merit and its effect on access to justice, and the breadth of the grounds for appeals on merit.

We agree that the policy proposal poses some difficulties regarding the way the Environment Court would determine applications for leave to appeal on merit. We consider that such difficulties need to be addressed properly to ensure that significant savings in process time and costs are realised, and to reinforce the role of local authorities as primary policymakers. However, we accept that there are real difficulties in devising criteria to guide the court. On balance, we are not satisfied that the proposal, in its current form, will work as intended and deliver fairness and natural justice. The only exception to this arises in the context of giving effect to national policy statements, where it is appropriate to limit such appeals to points of law to maintain consistency in the way the national policy statements are applied in planning documents.

Accordingly, we recommend that clauses 132 and 136 (save for the provision relating to section 55(2B) matters) be deleted and that further consideration be given to ways of achieving the policy intentions, such as providing more guidance on plan development by non-statutory means, and further direction through national policy statements and national environmental standards. As the removal of clauses 132 and 136(2) would obviate the need for the transitional provision in clause 160, we recommend that clause 160 also be deleted.

Removal of non-complying category

Although non-complying activities are deemed to be inappropriate activities, the principal Act provides that consent may be given where their effects are minor or not contrary to a plan. We are advised that approximately 3,600 consent applications are processed each year for non-complying activities, representing 7 percent of all consents.

Clauses 147 and 152 seek to remove the non-complying activity category from the principal Act in order to make plans less complex by reducing the number of consent categories, reducing costs and delays for processing applications for non-complying activities, and preventing this class of activity from being used to deal with activities that are not contemplated in an operative plan. We understand that the policy intent is also to encourage better drafting of plan provisions for discretionary activities and to provide more guidance for plan users.

We received and considered a large number of submissions on the removal of the non-complying category, mostly in opposition. Submitters expressed practical concerns about the cost of changing plans, the consequences of losing important jurisprudence, a possible reduction in public participation, the loss of guidance as to what activities are acceptable, and the implications for adjacent land use.

In general, we are concerned that the proposed provisions have the potential to generate a number of unintended consequences, which could increase the complexity and costs of the planning process, rather than reduce them.

We do not consider the non-complying category to be synonymous with the discretionary category of activity—simply replacing references to non-complying activities with references to discretionary activities is too crude a mechanism and risks damaging the balance in plans between objectives, policies, and rules. We are concerned that councils may have to revise their tests for what would constitute a discretionary activity because non-complying activities would generally be required to meet a higher threshold than discretionary activities. We suspect that many councils would have to make significant adjustments to their plans at a cost in time and resources, and that the new tests could result in even more complex and inconsistent planning documents.

For these reasons, we recommend deleting clauses 147 and 152 (and the associated commencement clause 2(1)), which seek to remove the non-complying category of activity from the principal Act.

Making of submissions and public notice of submissions

Under the current legislation, councils prepare a summary of submissions and notify its availability before inviting further submissions. Clause 148(8) would replace this process by allowing councils discretion to seek the views of potentially affected parties.

Many submitters opposed the proposal on the grounds that it would breach the principle of natural justice. They argued that people have a right to respond to points raised in submissions when they relate to their land or may have implications for them. They also regard the further submission process as important for raising new issues arising from submissions, and providing an opportunity to participate in any subsequent hearing or appeal proceedings. We noted a common concern that submitters could request changes that were subsequently incorporated into the final plan provisions without being subject to a further submissions process, and that such changes could significantly affect people without providing them with an opportunity to respond.

Some submitters were concerned that the onus would now lie with council staff to identify potentially affected parties. Some local government submitters were also concerned that the discretionary process might incur a risk of liability and expose councils to more litigation. A number of organisations and iwi expressed concern that groups with limited resources would be excluded from participation if they missed the first round of submissions.

We consider that the issues of natural justice and fairness to parties who might be adversely affected by proposed plan provisions, together with the potential increase in local authorities’ workloads as a result of these provisions, warrant the development of an alternative to the current proposal.

We recommend amending clause 148(8) to require local authorities to prepare, and advertise the availability of, a summary of outcomes sought by submitters, and to allow anyone with an interest that is greater than that of the public generally, or representing a relevant aspect of the public interest, or the local authority itself, to lodge a further submission within 10 working days. Further submitters would have the right to be heard and have a right of appeal, subject to the trade competition restrictions provided for in this bill. Therefore, we recommend deleting clause 148(9). The requirements for further submissions would revert to those in the principal Act prior to amendment, with further submissions only being able to be in support of or opposition to submissions under clause 6, and must be in the prescribed form.

We believe that the modified provisions will balance more appropriately the rights of potentially affected parties with the need to ensure that the plan development process is not unduly burdensome or costly.

Ability to oppose and seek withdrawal of entire plans or policy statements

As introduced, clause 148(17) would allow an appeal only if it did not seek the withdrawal of the proposed plan or policy statement as a whole, and if the person appealing had already submitted on the particular matter. We understand that the policy intent is to avoid long delays in plans and policy statements becoming operative while appeals seeking the withdrawal of the whole document are being resolved.

We considered but rejected arguments against removing the ability to challenge and seek withdrawal of an entire plan or policy statement by appeal (under new clause 14(2)(b) of Schedule 1 of the principal Act). We concluded that the benefits (time and cost savings for councils, the court, and third parties) would outweigh any inconvenience arising from placing more responsibility on appellants to specify their concerns and propose possible solutions.

We recommend amending clause 148(17) to clarify that a variation or change to a plan would not be captured by the prohibition against seeking to withdraw an entire policy statement or plan. The ability to seek the withdrawal of entire private plan changes would remain unchanged. Because a private plan change can circumvent the need for resource consent, we consider this right should be preserved to avoid creating an incentive for applicants to lodge private plan changes rather than comprehensive resource consent applications.

Finally, given our recommendation not to proceed with the change in decision-maker for notices of requirement (clause 110(1), (3), (4), (5), (6)), we recommend deleting the ability under clause 14(2B) of Schedule 1 of the principal Act (as amended by clause 148(17)) for a requiring authority or a heritage protection authority to appeal to the Environment Court against a territorial authority’s decision under clause 9 of Schedule 1.

Discounting administrative charges for late consent processing

Most of us recommend amending clause 25 (new section 36AA) to refer to a new regulation-making power in section 360 of the principal Act to allow regulations to be made setting a default discount policy for late processing of consent applications. We recommend also that the Minister for the Environment be required to recommend the making of regulations within nine months after the amendment Act comes into force and following consultation with local authorities. While the regulations would set out when and to whom the discount would apply, the main intent would be to require a local authority to discount its administrative charges where, through its own fault, it has not processed a resource consent application within the statutory times.

With a default policy set by regulation, we see no need to make it mandatory for councils to set their own policies, and therefore recommend amending clause 25 to make it optional. Under clause 25 amended as we propose, a local authority policy could override the default policy set by regulation only if it was more generous than the default policy. If it became optional for a local authority to develop its own policy instead of adopting the default one, the imposition of a time-frame on councils who chose to set their own policy would become redundant, so we recommend deleting it from clause 25.

We consider that these amendments would provide a minimum sanction for late consent processing that would be applied consistently across the country, and thus relieve councils of the obligation to develop individual policies. We also believe that it would be easier to address the difficulty of determining where the fault lies for failure to meet statutory deadlines by leaving this to be addressed in detail by regulation. We understand that the regulations proposed would also set down dispute resolution mechanisms, and would be subject to a consultation process.

Extension of statutory time-frames

Under the current provisions of the RMA, councils may extend time-frames by not more than double, or, providing the applicant agrees, by more than double the current time-frames—currently 20 working days for non-notified applications and up to 70 days for notified or limited notified applications.

The recently published two-year survey of local authority performance under the RMA draws attention to the way different councils use section 37A for extending resource consent and other processing times. We are concerned that councils are regularly extending time-frames for relatively simple resource consent applications, and in some cases overuse the extension provisions as a way of dealing with large numbers of applications, or staffing and other resource issues.

We are not convinced that the measures in the bill as introduced will speed up processing while councils can avail themselves of the opportunity to grant themselves extensions of time. We therefore recommend amending section 37A of the principal Act (new clause 25A) by inserting a new subsection limiting further the ability to extend time-frames under section 37(1)(a) in the case of applications for resource consent and changes to consent conditions. The current provisions for extending time-frames for processing other matters would continue to apply. For consent applications the ability to extend time-frames up to double the statutory maximum would be limited to either special circumstances or to the applicant’s agreement to the extension. The intent is to ensure that lack of staffing capacity or access to expertise would not justify an extension without the applicant’s agreement unless this amounted to “special circumstances” such as might obtain during a pandemic. For a period to be extended beyond twice the statutory maximum, the applicant’s agreement would be required. In both cases the consent authority would also have to take into account the matters in sections 371(1)(a) to (c) of the principal Act.

The provision made in section 37A of the principal Act for the granting of waivers would remain the same, except that we recommend amending section 37A(3) of the principal Act to require an authority to notify directly affected persons of waivers as well as extensions to correct an omission. We also recommend amending section 35(5) through clause 23 to require decisions under section 37A to be documented.

Further information and reports

Clauses 28 to 32, 34, 64, and 66 seek to reorganise and amend sections 41, 41A, 41C, 42A, and 92 of the principal Act, and would insert new sections 41BA, 41BB, 41D, and 92AB into the principal Act. This suite of amendments relates to the provisions for authorities to request further information and to commission reports to support their consideration of proposed statements and plans (and changes), resource consent (and similar) applications, and requirements. Broadly speaking, the simplification would separate the reporting and further information provisions applying outside hearing situations into two categories: those that would apply where a hearing is required (new section 41BA) and those that would apply when none was required (new section 92AB). In addition, new sections 41BB and 41D would apply during hearings.

Submitters were confused by the substantial changes proposed and raised issues of workability. Some were concerned that these provisions, as introduced, would not address the circumstances where further information and reports were required in non-hearing situations before consent authorities decided whether to notify a resource consent application.

Our attention was drawn to an unintended consequence of the proposed new time-frame for submitting any further information or reports to consent authorities on an application that is not to be heard. Clauses 64 and 66, which introduce new sections 92 and 92AB of the principal Act, would impose a time-frame of no later than 10 working days before the consent authority makes its decision on the application. Decisions can already be made by consent authorities within 10 working days of receiving an application. There is no specific reason to provide the information or report 10 working days in advance of a decision, particularly for a non-notified application where there is no need to circulate the information to other parties. Moreover, the time-frame requirement would effectively delay a consent authority’s decision. We also understand that the time-frame would not be helpful for applicants, because they would not know when the decision on the application was to be made. We accordingly recommend removing this requirement from clauses 64 and 66.

We recommend abandoning the proposed reorganisation of sections 41, 41A, 41C, 42A, and 92, and making more limited amendments to sections 41C, 42A, and 92. This would result in the withdrawal of clauses 28 to 30, 32, and 66 of the bill as introduced.

In their place we recommend:

• •an amended clause 31 to set out the new requirements for providing copies to the applicant and submitters of further information and reports received by an authority under subsections 41C(2) to (4)

• •an amended clause 34 to retain the provision for planning reports under section 42A, continue to provide as in the bill as introduced that such reports need not repeat material from an applicant’s assessment of environmental effects, and continue to provide a new time-frame for the circulation of such reports to parties to the hearing if the authority directs pre-circulation of evidence, as well as a new requirement to notify submitters who do not wish to be heard of the receipt of the report

• •an amended clause 64 to require consent authorities to notify submitters of the availability of further information or reports.

We do not recommend any amendments to section 41(4) of the principal Act, as proposed in the bill, relating to information and advice that may be requested during a hearing.

We recommend inserting new clause 27A to amend section 39(1), which applies to the conduct of hearings, to update references to the matters to which it relates as well as extending its scope beyond requirements for designation and heritage orders to include requirements for alterations to designations and heritage orders, which may also be the subject of hearings.

We consider that the proposed amendments would improve the workability of these provisions.

Tree protection rules

Clause 52 would amend section 76 of the principal Act by prohibiting local authorities from making blanket tree protection rules that would apply in an urban environment unless the tree or group of trees was specifically noted in a schedule to the district plan, or located within a reserve or area subject to a conservation management plan or strategy.

Clause 52 could remove the need to process more than 4,000 resource consent applications per year for pruning or removing trees in urban areas subject to blanket protection rules. Ample lead-in is provided by way of transitional provisions in clause 151, which would revoke existing general tree protection rules on 1 January 2012, and require local authorities to amend their plans during the transitional period.

Clause 52 refers only to trees or groups of trees “specifically identified in a schedule to the plan”. We are aware that most territorial authorities use schedules in conjunction with maps and symbols to identify a tree or group, and that although maps are useful aids for identification they are generally not included as a schedule but in the plan itself. We therefore recommend that clauses 52 and 151 be amended to refer to a plan, which would include any schedule in which trees were listed.

We consider that the scope of rules for the “protection” of trees could be regarded as unclear. We recommend that the clause be amended so that a district rule could not prohibit or restrict the felling, trimming, damaging, or removal of any tree or group of trees in an urban environment unless they were identified in the plan.

We recommend defining “urban environment” to relate to urban and suburban areas but not to rural or semi-rural areas, and consider that the definition should require such an environment to include all of the following elements:

• •an allotment of 4,000 square metres or less

• •containing a dwelling house or a building used for industrial or commercial purposes; and

• •connected to a reticulated water supply system and a reticulated sewerage system.

We received many submissions on clause 52. Many submitters feared that clause 52 would lead to the wholesale destruction of trees or a reduction in the number of trees in urban environments. Some were concerned about the cost of preparing schedules, which would involve assessing individual trees. They were also concerned that the scheduling process would be slow to react to changes in the environment, as schedules can be updated only by way of a plan change.

We take the view that the intent of the proposed provisions is to reduce the time and cost of applying for and processing resource consents for relatively minor matters. Blanket protection rules could still apply to trees in an urban area that were located in a reserve or conservation area. For trees in other urban areas the bill would continue to allow individual trees and groups of trees to be protected by listing in a district plan. We also observe that the principal Act is not the only means of promoting tree coverage in urban areas and that the bill does not prevent councils from offering incentives for planting, maintenance, or voluntary protection by way of covenants.

We note that local authorities may need to review their current practices for listing trees and groups of trees, as the tree or group will have to be identified specifically in the plan if it is to be protected. To list a group of trees, considerable detail might be required, including the species, the number of trees, and their precise location. We also note that local authorities may need to update their plans for some groups of trees to make references to some protected groups of trees more specific.

On balance most of us supported prohibiting blanket tree protection rules in planning documents. A number of us, however, regard clause 52, as amended, as unsatisfactory and would have preferred a more comprehensive solution for protecting urban trees.

Types of activities and certain activities to be treated as discretionary or prohibited

New section 87A, to be inserted in the principal Act by clause 60, would bring all the provisions related to resource consent processes together and amend the resource consent application requirements applying to activities described in plans or regulations as permitted, controlled, restricted discretionary, discretionary, non-complying, or prohibited.

We note that proposed new section 87A(3)(a) covers both declining and granting consent to a restricted discretionary activity, whereas section 77B(3)(c) of the principal Act, which it replaces, covers only declining a consent. We understand that the intent of this change to the wording is to reverse the judgment of the High Court in Auckland City Council v John Woolley Trust.¹

We also note that proposed new section 87A(5)(b)(ii) appears to require that an activity comply with section 104D of the principal Act in order to be a non-complying activity. This would add a new requirement to the description of the features of a non-complying activity, which is found in section 77B(5) of the principal Act, and might create uncertainty by suggesting that the activity’s status could not be determined until the application had been assessed. We understand it was intended that a resource consent for a non-complying activity could be granted only in accordance with section 104D, and we recommend amending new section 87A(5)(b)(ii) accordingly.

We also recommend amending proposed new sections 87A(2)(b) and (3)(a) to reflect the fact that limitations on a consent authority’s power to impose conditions on a resource consent for a controlled activity, or to determine an application for consent for a restricted discretionary activity, include any limitations imposed on the consent authority, for example by a national environmental standard.

Stopping the consent-processing clock

Clause 62 adds to the statutory time periods in section 88B that may be “paused” by the clock-stopping events listed in section 88C. Clause 63 adds further clock-stopping events in section 88C, but also provides that only the first request under section 92(1) for further information will stop the clock.

We recommend replacing clauses 62 and 63 with new clause 62, which would repeal sections 88B and 88C of the principal Act. The substitute new section 88B and substitute sections 88C and 88E would simplify the proposed amendments, and include other recommendations on these provisions. New clause 62 would then include the provisions formerly in clause 63.

We recommend amending section 88B to allow the clock to stop for the time limits for preparing direct referral reports in proposed section 87D (Now also sections 198C and 198J). This amendment would stop the clock while a consent authority requested further information or commissioned a report during the direct referral process.

We recommend adding an additional subsection to refer to sections 41B(6) and (7), which provide the time limits for commencing a hearing where directions have been issued under section 41B (exchange of evidence).

We recommend splitting the clock-stopping events in former section 88C into three separate sections: section 88C (further information and reports); section 88D (event associated with the direct referral processes); and section 88E (other events).

A number of adjustments are recommended to the exclusions for clarity and workability, and as a result of amendments we are recommending elsewhere in the bill.

We consider that the time spent on dealing with a request for direct referral (new section 88D(2) and 88D(8)) should not stop the clock for decisions on notification. Potentially it could do this if a request was received before a decision on notification was made. We therefore recommend including a new subsection in section 88D to provide for this.

In relation to further information requests under section 92 referred to in proposed section 88C, we consider that provision should be made to allow the clock to stop upon a second request for further information to be provided after the close of the submission period for notified applications, and recommend amending the bill accordingly. We further consider that the limit of two information requests should apply whether or not the information requested was provided.

In relation to events associated with direct referral, we recommend amending clause 63 of the bill (now proposed clause 62, inserting proposed new sections 88D(3) and (4)) to add the time taken to deal with an objection to refusal of a request for direct referral to the periods that must be excluded from the periods listed in section 88B. This would start with the date the applicant lodges an objection, and end when a decision on the objection is issued. This exclusion would apply when an applicant lodged an objection under section 87D (and also section 198B). We use the term “applicant” for convenience but note that the provisions applying to direct referral also apply to requirements for designations and heritage orders.

Also, we recommend amending clause 62 to reflect consequential changes resulting from recommended changes to the 10-working-day time-frame for making a decision on a request for direct referral. This would be extended to 15 working days after the request (if the request was made after the authority had decided to notify the application) and to 15 working days after the decision on notification (if the request was made before the authority had made a decision on notification).

We recommend that where a direct referral report is sent to the applicant and submitters, the statutory time-frame should start at the point when the report is sent out to the applicant and end when the consent authority knows that it will be determining the application. The statutory clock would then stop until the earlier of either the 10-working-day deadline for filing the notice of motion or the applicant advising the consent authority that it does not intend to proceed with direct referral to the Environment Court. This would apply in cases where the applicant, having seen the direct referral report, opted out of the direct referral process in favour of the standard process through the consent authority.

In relation to new section 88E, we recommend amendments so that when the processing of an application was paused pursuant to section 91, the excluded period would end when all, rather than “any 1 or more”, of the outstanding resource consent applications (for which the processing was paused) were received.

The changes we recommend to clauses 62 and 63, particularly the provision of a second opportunity for stopping the statutory clock for a further information request, would address our concern that the provisions in the bill as introduced are too blunt to apply to the processing of complex applications, which often require more than one request, or to applications that have not been prepared by a resource management professional, where the response to one request for information will often trigger the need for additional information.

Applications to be referred to Maritime New Zealand

New clause 63A would insert a new section 89A, providing for Maritime New Zealand to be notified of applications for resource consent affecting navigation. This would update and relocate section 395 of the principal Act, which is currently located in the transitional provisions because of a sunset clause that was repealed before coming into force. This amendment would require a consequential amendment to clause 146.

Public notification restricted

We recommend amending clause 68 to modify the proposed new rules for determining whether or not to notify an application for resource consent and the form in which notification must be made. As introduced, clause 68 would repeal sections 93 and 94 of the principal Act and substitute new sections 93 to 94AAE. Our recommended amendment would require the repeal of sections 93 to 95 and the substitution of new sections 93 to 95C to address our concerns on matters of substance and to restructure the new provisions to make them more readable.

Under the current law, the general rule is to notify unless consent authorities can demonstrate that the application meets certain tests. The process of assessing and justifying decisions not to notify imposes considerable costs and delays.

Under the bill as introduced, public notification would be required if the consent authority was “satisfied that the adverse effects of the activity beyond the immediate environment will be more than minor” (now new section 94). We consider that new section 94 would prescribe a very high threshold of certainty, and recommend that the words “will be more than minor” be replaced with “may be more than minor”. We also consider that the proposed test leaves too many questions unanswered about the application of the term “beyond the immediate environment”. Because this test would seem contingent on the circumstances of each particular case, we acknowledge that it cannot be defined satisfactorily by statute. We therefore recommend substituting a new test that would require a consent authority to publicly notify a consent application if it decides that the adverse effects of the activity on the environment may be more than minor but would exclude effects on persons who own or occupy the land where the activity will occur or any adjacent land owners or occupants.

In relation to limited notification, some submitters expressed concern at the raised threshold of “more than minor” effects for determining who is an affected person. We are also concerned that, as introduced, clause 68 could discourage the participation of parties who might genuinely be affected by a proposal. We therefore recommend that the point at which a person is considered to be an “affected party” be set higher than the current test, but lower than that proposed in the bill as introduced (now new section 95B).

We also note that new section 93A(2) (in the bill as introduced) would make it mandatory to apply the permitted baseline test when considering whether a person was affected. We are advised that the policy intention was to retain this test as discretionary, and recommend that the section be reworded so that it is clear that a person “may” (rather than “must”) be treated as not being adversely affected if the plan permits an activity with that effect (now new section 95B(2)).

We also recommend the insertion of new clause 4A for ease of reference. This new clause would cover all definitions relating to notification.

We consider that the amendments we recommend will improve the workability of the new notification procedures, and address some of the concern regarding effects on community participation. Some of us remain concerned that the proposed changes would unduly restrict participation. However, the majority of us feel that given that approximately 95 percent of resource consents are processed without public notification, we are not concerned that clause 68 will severely reduce the opportunity for public participation except at the level of affected parties and providing associated approvals. We consider that any remaining concern about the impact of the new notification procedures should be reduced by the opportunities for community engagement at the plan development stage.

Consideration of applications

We recommend deleting clause 77(2) and inserting a new subsection in section 104 to make it clear that a consent authority could decline an application for a resource consent because of inadequate information, and for that purpose to take account of whether applicants had responded to requests for further information or for agreement to the commissioning of further reports. We consider that this would clarify the relationship between insufficiency of information and other factors bearing on the exercise of the authority’s decision-making power on consent applications.

Outstanding applications for resource consent where further information requested

Clause 161 seeks to address a processing inconsistency between resource consent applications lodged prior to 10 August 2005 (the commencement of the Resource Management Amendment Act 2005) and those received after that date, by deeming any application received prior to the 2005 amendments to have lapsed if it was “on hold” awaiting further information, and the applicant had failed to respond for 12 months or more. A lapsed application would be treated as a new application if it was lodged again, to ensure that such applications could be assessed under current planning frameworks.

In the bill as introduced the 12-month period could have begun and lapsed before clause 161 was enacted. We recommend amending clause 161 to make it clear that the applicant would have 12 months from the making of the request to comply with it if the request is made after the enactment of clause 161 and (where the request was made before clause 161 was enacted) the period would begin when the provision comes into force.

We note that clauses 155, 156, 157, and 162 set out other transitional provisions regarding applications for resource consents filed and accepted under section 88 of the principal Act before clause 2(3) of the bill comes into force. We recommend that clause 155 be deleted and other transitional clauses amended. We understand that a current application for a resource consent lodged before the 2005 amendments came into force may come within some of these general transitional provisions, and recommend amending the bill to clarify that clause 161 overrides clause 62, the general transitional provision relating to applications for resource consent in the specific circumstance to which it applies.

We recommend also clarifying that the clause is intended to apply where the applicant has failed or refused to comply with the request and has not had any objection upheld.

Two-yearly survey of local authorities

We recommend amending clause 145 to provide for regulations under section 360(1) to make it mandatory for local authorities to provide information to the Minister for the Environment under sections 35 and 35A within specified time limits. This would allow the collection of complete information for the Ministry for the Environment’s two-yearly survey of local authority performance under the principal Act.

Local authorities currently supply information voluntarily through a two-yearly survey. The survey gauges RMA process workloads across the country, assesses councils’ management of their workload, and provides data to the ministry on problem areas and opportunities for improvement. It is an important means by which the Minister can exercise the statutory function of monitoring the effects and implementation of the Act under section 24(f). Because it is not mandatory, however, not all local authorities respond to the survey. While most of them do, we understand that there is much variation in the ways individual local authorities collect and record data, which affects the quality and timeliness of the survey.

We consider that it would be more appropriate to specify the type of information required and conditions on its collection and provision by way of regulation than to include this level of detail in statute.

Definition of contaminated land

We recommend that the definition of contaminated land in section 2(1) of the principal Act be replaced with a new definition, to be inserted into clause 4 of the bill.

Section 2 defines contaminated land as land of one of the following kinds:

• •If there is an applicable national environmental standard on contaminants in soil, land that is more contaminated than the NES allows.

• •If there is no applicable NES, land that has in or on it a hazardous substance that has, or is reasonably likely to have, significant adverse effects on the environment.

There is no NES for soil contaminants. We understand that it is unlikely that such an NES, when developed, will set soil contaminant values that define contaminated land. We would be concerned that, if a standard were released that describes soil guideline values, the current definition under section 2 could lead to confusion and the misapplication of the standard to defining contaminated land.

We therefore consider it appropriate to remove any reference to national environmental standards in the definition. Contaminated land would be redefined as land that has in or on it a hazardous substance that has, or is reasonably likely to have, significant adverse effects on the environment.

Restrictions on the use of sensitive environments

We recommend amending clause 10 to ensure that proposed activities affecting the coastal marine area would be subject to operative and proposed regional coastal plans. The proposed amendment would clarify the requirement to comply with both operative and proposed regional plans, and would reflect more clearly the policy intent that an activity should be permitted under all relevant documents, or authorised by resource consent.

We similarly recommend amending clauses 9 and 11 to 13 to require that proposed activities affecting proposed subdivision of land, beds of lakes and rivers, water, and discharge of contaminants also comply with operative and proposed plans as currently provided for in the principal Act, in addition to the other restrictions set out in these provisions.

Additional powers to implement national environmental standards

We recommend amending clauses 38 to 40 to clarify the way that rules and a NES interact in exceptional circumstances, and to allow the establishment of a notification pathway for activities specified in a NES. This would align the notification track for a NES with rules in plans.

The recommended changes would allow councils to refer to a NES in their planning documents, and to remove any duplication of provisions in the NES and planning documents without having to go through the full notification process that would otherwise apply to proposed changes to planning documents as set out in Schedule 1 of the principal Act.

Conduct of hearing

As introduced, clause 44 amends section 50 of the principal Act to explicitly provide the power for the Minister for the Environment to be heard at a board of inquiry hearing into a NPS, irrespective of whether the Minister has made a submission on the proposed NPS. We are advised that the intention of this additional power is to provide the Minister with an opportunity to clarify the Government’s position on a proposed NPS in certain circumstances.

We recommend amending clause 44 to make it clear that there is no intention to remove the right of submitters to be heard at a board of inquiry hearing into a NPS by virtue of clause 44(2), and that the new power under clause 44 would be additional to the rights of submitters under section 40 of the principal Act.

Consideration of board of inquiry recommendations

Clause 47 of the bill provides options for the Minister to consider in response to recommendations made by a board of inquiry. The power for the Minister to withdraw all or part of a proposed NPS would be provided in clause 46.

We recommend amending clause 47 to require the Minister to give reasons for not accepting the recommendations of a board of inquiry (or process) in respect of a proposed NPS, in order to improve the transparency and accountability of such decision-making powers under the principal Act.

Consent authorities and Environmental Protection Authority to grant certificates of compliance

Clause 90 seeks to amend section 139 of the principal Act to reflect the ability of the EPA to grant certificates of compliance in limited circumstances and to make it clear that consent authorities could process, consider, and grant certificates of compliance where an activity complied with a NES and did not need a resource consent, if an applicant requested such a certificate. The effect of clause 90 would be to deem a certificate of compliance to be a resource consent, issued subject to any conditions specified in the NES or the local authority’s plan.

Some submitters were concerned about certificates of compliance being issued where an activity complied with a plan and not a NES or vice-versa. We believe that the hierarchy governing rules in plans and national environmental standards is well established in other sections of the Act, making it clear that the NES would prevail and a rule could not be more lenient.

We recommend reworking clause 90 to make it easier to follow and to clarify that it would apply whenever an activity could be lawfully carried out without a resource consent.

Act to bind the Crown

As introduced, clause 5 would repeal subsections (1) and (5) of section 4 of the principal Act and insert new sections 4(1) and 4(5) to (9), which would:

• •allow an abatement notice, excessive noise direction, or enforcement order to be made against the Crown (all of which may be brought only by a local authority or enforcement officer)

• •provide for Crown organisations to be served with infringement notices or be prosecuted (only by a local authority or enforcement officer).

Under the bill as introduced, enforcement orders, abatement notices, and excessive noise directions would be available against “the Crown” generally.

We recommend amending clause 5 to substitute “Crown organisation” for “the Crown” in sections 4(5) to (8) of the principal Act, as amended by clause 5. This reflects the policy intent that enforcement action should be available against the Crown in a similar way to the imposition of criminal liability on the Crown under the Crown Organisations (Criminal Liability) Act 2002. Consequential amendments are proposed to clarify the process for proceeding against a Crown organisation.

We recommend a new provision to provide expressly that enforcement action may be taken against a Crown organisation despite the provision of section 17(1)(a) of the Crown Proceedings Act 1950, which limits the ability to issue an injunction against the Crown.

We also recommend a new subclause making it clear that the right to bring enforcement action against a Crown organisation would be subject to section 8(4) of the Crown Organisations (Criminal Liability) Act, which provides that a court may not sentence a Crown organisation to pay a fine.

Circumstances in which consent conditions can be reviewed

Clause 86 would require a consent authority to review the conditions of a resource consent if the District Court ordered a review as a result of convicting the consent holder for conduct involving a contravention of the resource consent. This change would implement a new power provided to the court by clause 141(2) of the bill.

We recommend amending clauses 25, 88, and 89 to widen further the effectiveness and deterrent effect of ordering a review of resource consent conditions under the principal Act by

• •requiring a consent authority to have regard to any reasons for which the District Court ordered a review of resource consent conditions when reviewing those conditions

• •allowing a consent authority to cancel a resource consent where the court had ordered a review of conditions and significant adverse effects resulted from the exercise of the consent

• •allowing a consent authority to recover from the consent holder any costs associated with a review of consent conditions ordered by the District Court.

Penalties

The bill proposes a differential fines regime according to whether the offender is an individual or a corporate. We recommend amending clause 141 to allow the penalty regime to distinguish instead between natural persons and persons other than natural persons. For a natural person, clause 141 as amended would impose a maximum prison term of no more than two years and a fine not exceeding $300,000. Persons other than natural persons would be subject to a fine not exceeding $600,000.

The recommended amendment would clarify the application of the penalties regime to an unincorporated group of people, which is covered by current section 339(1) in the Act that refers to a “person”, but not by the new section 339(1) proposed in the bill.

We recommend the insertion of new clause 141A to ensure that legal persons that are neither natural persons nor bodies corporate (actual or deemed) such as unincorporated bodies, have the same defence as a body corporate. Under current law, section 340(2) of the principal Act provides a defence when “innocent” defendants were held liable for the acts of their agents or employees, or persons in charge of a ship belonging to them. Paragraphs (a) and (b) of section 340(2) impose requirements on natural persons and bodies corporate respectively who might wish to avail themselves of the defence, but these requirements are not currently extended to other types of legal person.

Clause 141A would also amend section 340(3) of the principal Act to extend criminal liability to directors and managers of non-natural persons who are convicted of offending against the Act if the director or manager authorised and knew of the offending by the principal offender, not limited to directors and managers of bodies corporate. This would extend the scope of the section to directors and managers of Crown organisations that were not bodies corporate, and to unincorporated groups.

Limitation period for criminal proceedings

We recommend amending section 338(4) through new clause 140A to correct a historical omission in the principal Act as amended in 1994. Section 338(4) of the principal Act would then apply in place of the normal time limit for bringing criminal proceedings under the Summary Proceedings Act 1957 of six months from the occurrence of an offence, an extended time limit of six months from when the contravention first became known, or should reasonably have become known, to the prosecuting authority. As it would apply only to prosecutions for offences under section 338(1), we recommend its extension to prosecutions for offences under section 338(1A) and 338(1B) of the principal Act. We also recommend amending clause 159 to provide transitional arrangements applying the extended time limit only to offences committed after the bill comes into force.

We recommend further amendment to clause 159 to ensure that criminal proceedings and proceedings for enforcement orders are conducted under the current law where the relevant act or omission occurred before the commencement of this section, even if the proceedings began only after the amendment Act commenced.

The direct referral process

We recommend a number of amendments to new sections 87C to 87G, included in the bill as clause 60.

In the bill as introduced, sections 87C to 87G would apply to applications for resource consent, reviews of consent conditions, applications to change or cancel or change consent conditions, and requirements for designations or heritage orders. We recommend deleting the reference to reviews of consent conditions, which are processes initiated by consent authorities and should not be subject to direct referral on the authority’s initiative. We also recommend extending the provisions to requirements for alterations to designations and heritage orders.

We also recommend splitting sections 87C to 87G into provisions dealing separately with applications associated with resource consents (sections 87C to 87G); requirements associated with designations under section 168 and heritage orders under section 189 (clause 122B, proposed new sections 189A to 189G); and requirements associated with designations under section 168A and heritage orders under section 189A (clause 122B, proposed new sections 189H to 189N). While these sets of provisions for direct referral would be broadly similar, they would not be identical because of differences in the provisions for processing the underlying substantive matter.

We recommend providing expressly (through proposed new sections 87BA(2), 198A(2), and 198H(2)) that direct referral does not apply to any matter called in under section 141B.

We recommend amending new section 87C (and the equivalent provisions applying to requirements) so that direct referral would be available only for matters that were notified, because it is not appropriate for a matter that will not be contested to be determined by the Environment Court. We also recommend extending the time period during which a request for direct referral may be made from the time of lodging the substantive matter (as in the bill as introduced) until five working days after the close of submissions, to align it with the time-frame for seeking call-in under amendments we propose to the bill.

Allowing a request for direct referral to be made before a decision has been made on notification means that the time-frames for decisions on such requests will need to be amended. We therefore recommend that, where a request for direct referral is made before it is known whether the substantive matter will be notified, a time-frame of five working days after the decision on notification has been made be allowed for a decision on the direct referral request. In other circumstances we recommend extending the time-frame for making a decision on the request for direct referral from 10 to 15 working days. We consider 10 working days to be insufficient, particularly as there is no provision in section 88B to stop the clock for this time-frame.

We also recommend that the council be required to give reasons for its decision on a request for direct referral, which would assist applicants wishing to exercise their right to object to a refusal to agree to direct referral.

Section 87D provides for the authority that would otherwise hear the matter to prepare a report on it for the court. In the bill as introduced the report must include the conditions which the authority would have wished to attach if it granted the application or requirement or made a recommendation for the requirement to proceed. We consider that it would be helpful if the bill provided more guidance for councils on the content of the report, which is for the assistance of the court, but that it should not make it mandatory to include proposed conditions. We therefore recommend amending the bill to provide in proposed new section 87D(4) (and the equivalent proposed sections applying to requirements) that the report may address relevant issues in the provisions under which the substantive matter is to be considered, and may also contain the conditions the authority would wish to see attached.

We recommend amending and extending the time-frames for the preparation of this report in proposed new section 87D(3) (and the equivalents for requirements) because of the extension of the time allowed for making the request for direct referral.

We recommend amending new section 87E(4) to provide that section 274 applies to proceedings commenced under section 87E, instead of sections 291(3) and (4) (with similar amendments to the equivalent provisions applying to requirements). This is necessary because sections 291(3) to (4) and section 274, which also applies to proceedings in the Environment Court on direct referral, impose different and conflicting obligations on submitters wishing to become a party to the proceeding.

Finally, we recommend amending new section 87G (and the equivalent provision for requirements under sections 168 and 189) to recognise that an applicant who, having received the council’s direct referral report under section 87D, decided to proceed before the council instead of going to the court, might wish to notify the council of that decision before the period of 10 working days allowed for filing in the court had elapsed so that the council could continue to process the matter. If the applicant did so, the “stopping the clock” periods allowed in proposed new sections 88D(6) and (12) would end when the council is notified by the applicant, instead of running until the time period for filing proceedings in the court ends.

We consider that special time-frames are needed for the commencement of hearings, and notification of decisions on proceedings that are not heard, where a request for direct referral is granted but the applicant decides nonetheless to proceed before the council. The time-frames in sections 41B(5), 101, and 115 may not be adequate. We recommend that a consent authority be required to hold a hearing within 15 working days or, where pre-circulation of evidence is ordered under section 41B, within 30 working days, of becoming aware that it will be hearing the matter. The current requirement is to hold the hearing within 25 working days from the close of submissions or 40 working days where pre-circulation of evidence is ordered. We recommend consequential amendments to section 115 to provide a time-frame of 10 working days for decisions to be issued where no hearing is to be held, commencing from the time the council becomes aware it will be determining the application.

We consider these changes would ensure that the new mechanisms would work more smoothly with the new provisions under clauses 62 and 63, which would restrict the opportunities for consent authorities to extend their processing times without good cause. They also provide better linkages between the direct referral path and the standard referral path for the processing of consents.

Removal of Minister of Conservation’s final decision-making power

By repealing section 28(c) and sections 118 to 119 of the principal Act, clauses 20 and 83 would remove the Minister of Conservation’s power to make decisions on recommendations by the Environment Court in respect of applications for restricted coastal activities (commonly referred to as the “ministerial veto”). It would, however, retain the Minister’s power to grant coastal permits under section 31A of the principal Act (for offshore islands where the Minister is acting as either the regional council or the territorial authority).

We recommend amending clause 20 to remove the reference to the Minister of Conservation’s power to grant coastal permits under section 31A to ensure that the Minister of Conservation’s function in relation to monitoring the effect and implementation of New Zealand coastal policy statements and coastal permits is not limited to only those coastal permits granted by the Minister of Conservation under section 31A but to all coastal permits for restricted coastal activities. We consider it is appropriate for regional councils to be responsible as the consent authority for those coastal permits that were previously issued by the Minister of Conservation under repealed section 119. This is now clarified in amended section 119A (clause 83A).

The bill’s provisions for decision-making on coastal permits for restricted coastal activities limit the Minister of Conservation’s role to a monitoring one in respect of restricted coastal activities. We recommend inserting new section 28A into the principal Act to require regional councils to provide information to the Minister of Conservation in relation to any coastal permits issued, and to clarify requirements for the Minister to request such information and for the regional council to respond. This would ensure consistency with the Minister for the Environment’s powers to request information and the obligation on councils to supply it within time-frames and without charge as set out in existing section 28 of the Act.

The effect of clause 20 and related clauses (particularly clause 82) would be that the final decision-making power on coastal permits for restricted coastal activities would lie with the regional council (through a committee including a ministerial appointment, however) or the Environment Court through call-in, direct referral, or on appeal, or a board of inquiry through call-in.

Many submitters opposed the removal of the “ministerial veto” on the basis that the Minister of Conservation plays an important role in representing public interests in the coastal environment and is effectively exercising “landowner” interests on behalf of the public. Some submitters feared that removal of this power would prejudice any future iwi or hapū rights to protect the seabed and foreshore, and others feared that regional councils would fail to protect the interests of the community in making decisions on coastal matters, or have conflicts of interest. There was also concern expressed that councils do not share the Crown’s obligation to acknowledge or accommodate present or future Treaty of Waitangi claims.

We are advised that the Minister of Conservation retains adequate powers under the principal Act including powers to express the national interest and to safeguard the sensitive coastal marine environment. Planning instruments include preparing and recommending the New Zealand coastal policy statement to restrict certain coastal activities, and approving the content of and directing the review of regional coastal plans. The regional council must also delegate decision-making powers in relation to the hearing and deciding of applications for restricted coastal activities to at least one representative appointed by the Minister of Conservation. The Minister of Conservation retains power to impose controls on recognised customary activities, control the tender of certain extraction rights within the coastal marine area, influence the way space is allocated in the coastal marine area, and appeal local authority decisions to the Environment Court.

We note that the Minister of Conservation’s functions, duties, and powers under the Foreshore and Seabed Act 2004 would remain unaltered by the bill, and we have been assured that the changes proposed to the Minister of Conservation’s powers under clauses 20, 82, 83, and 83A would not affect the implementation of existing settlement redress agreements. However, some of us are not confident that the Minister of Conservation’s new role would adequately represent the interests of the Crown in the seabed and foreshore.

In relation to the treaty obligations placed on local authorities, we note that the principal Act requires regional councils when making decisions or carrying out functions under the Act to take the principles of the Treaty of Waitangi into account, and that other provisions in the Act give effect to this requirement. Should the Minister of Conservation consider that Māori interests were not being given sufficient weight in respect of decisions in the coastal environment, the Minister would still have the power to provide stronger direction in the form of specific, directive policies in the New Zealand coastal policy statement.

In summary, we consider it preferable for national policy direction and expression to be provided through policy instruments—particularly the New Zealand coastal policy statement, which establishes clear national interests for all activities in all regional coastal plans. We consider that more consistent outcomes would be achieved by relying on national policy instruments than by trying to determine the national interest in an ad-hoc response to individual consent applications, where the Minister’s decision-making discretion is narrow.

We are concerned that there appear to be inconsistencies in the way issues of public ownership and representation are dealt with in the coastal marine area, compared with non-coastal land, and believe these matters warrant further analysis. We consider that a review of the appropriate role for the Minister of Conservation in the coastal marine area should be undertaken in the second phase of reforming the RMA.

Delegation of powers and functions to employees and other persons

We recommend deleting clause 22(2) of the bill. This provision seeks to prevent local authorities from delegating their decision-making powers on requirements for a designation, and is a consequential change arising from the transfer of the decision-making role on notices of requirement given under section 168 of the principal Act from requiring authorities to territorial authorities. We recommend that provisions providing for the transfer of the decision-making role not proceed, and therefore that this subclause not proceed.

Hearing by commissioner if requested by applicant or submitter

Clause 73 inserts new section 100A into the principal Act to allow an applicant, or a submitter to a notified resource consent application or a notice of requirement, to request that a consent application or requirement be heard (and decided or recommended upon) by at least one hearings commissioner who is not a member of the local authority or one or more persons permitted by section 34A, including one independent commissioner.

We consider that the presence of one independent commissioner where a hearing panel consisted of three or more might not provide the necessary independence, or relevant expertise and experience as they may be in the minority.

We recommend replacing proposed section 100A(3), which refers to the delegation of the local authority’s functions and duties to one independent commissioner, with a new 100A(3) that requires a local authority to delegate functions, powers, and duties to one or more commissioners who are not members of the local authority. We also recommend amending section 100A to provide that a request for independent commissioners can be made any time up until five working days after the closing date for submissions.

We note that there is also provision in the bill for local authorities to recover costs from appellants or submitters who requested independent commissioners for the additional costs of the application or requirement being heard and decided, or recommended on, in accordance with the administrative charges provisions (in clause 24 as amended).

Notice of requirement by territorial authority

We recommend amending clauses 108(2) and 109(1) to remove references applying the direct referral process located in Part 6 of the principal Act (which is concerned with resource consent applications) to notices of requirement for designations under section 168(1) or (2) or section 168A(1). These references are unnecessary if the bill is amended, as we recommend, to make specific and direct provision in Part 8 for direct referral of notices of requirement (new clause 122B).

We also recommend amending the title of clause 108 to refer to a “territorial authority”, rather than “local authority”, for accuracy.

We consider that the bill should provide expressly that trade competition and the effects of trade competition are not relevant to decisions on requirements issued under section 168A of the principal Act, which mirrors the bill’s provision in relation to recommendations on requirements under section 168, and recommend that clause 108 be amended accordingly.

We note that some submitters are concerned generally about the policy underlying the powers in clauses 108 and 109, which would give territorial authorities discretion in relation to notification of notices of requirement for designations, and the process for direct referral. We do not accept that mandatory notification of notices of requirement should be retained. Providing for non-notification as appropriate would streamline and simplify processes, reducing unnecessary procedures and documentation. We note that designations tend to involve proposals attracting a high level of public interest, which means that notification decisions will have to be robust and well explained.

We consider there will be a need for the Ministry for the Environment to provide comprehensive guidance to practitioners to reduce costs and delays associated with documenting the notification decisions. We also consider that the powers of requiring authorities should be reviewed in the second phase of the reform of the principal Act.

Recommendation by territorial authority

Clause 110 of the bill proposes that the decision-making authority for notices of requirement under section 168 be transferred from the requiring authority to the territorial authority to whom notice of the requirement was given.

We have some concerns about the practicality of transferring the decision-making power on notices of requirement for designations in the absence of a wider review of the way in which major infrastructure projects are managed. We also note that there is potential for increased costs and inefficiencies resulting from network operators having to comply with diverse and potentially conflicting territorial requirements. We consider there would be a risk that more time and money could be taken up in the Environment Court as requiring authorities appealed decisions or particularly onerous conditions in order to safeguard the viability of their operations.

On balance, we consider that potential difficulties and risks of the proposal would be better addressed as an integrated infrastructure package in phase two of the RMA reforms, which is to include a review of the role of designations and to examine other ways of planning for and managing the effects on network infrastructure.

We recommend deleting clauses 110(1), (3), (4), (5), and (6) and deferring consideration of changes to the decision-maker role in the designations process to phase two. We also recommend merging the provisions of clause 110(2) with the existing section 171 to preserve the prohibition against territorial authorities having regard to trade competition or its effects when considering a requirement and any submissions received. We similarly recommend extending this prohibition to existing section 168A to ensure that it would apply to consideration of a territorial authority’s own notices of requirement.

We recommend deleting clauses 111, 112, and 113 as a consequence of our recommendation to delete those parts of clause 110 concerned with the decision-maker role, and consequential amendments to Schedule 1 of the principal Act.

Designation to be provided for in district plan

Clause 114 would amend section 175 of the principal Act, which states when a territorial authority must include a designation and (by cross-reference) a heritage order in its plan once the requirement has been confirmed or modified.

The changes to section 175 put forward by clause 114 are linked to the changes proposed under clause 110 (giving territorial authorities the decision-making role in respect of notices of requirement) and also the provisions providing for call-in of requirements. Because we have recommended that clause 110 not proceed, clause 114 should be amended to recognise that the decision-making power would remain with the requiring authority.

We also recommend amending clause 114 to change the consequences of a designation or heritage order being granted by a board of inquiry following call-in. Under the bill as introduced, while a decision of the board was under appeal the territorial authority was not required to include the designation or heritage order in the plan, but the bill was silent regarding decisions by the Environment Court either on direct referral or following call-in. We consider that designations and heritage orders granted by a board of inquiry or the Environment Court should be included in the plan with immediate effect, without any need to await the outcome of appeals. This is different from the situation regarding designations and heritage orders resulting from recommendations or decisions of territorial authorities, as such decisions are subject to appeal de novo, and not just on points of law.

Outline plan

Clause 116 would amend section 176A of the principal Act so that a territorial authority could require (rather than request) a requiring authority to change an outline plan that had been submitted to the territorial authority. Clause 116(2) would allow the requiring authority to appeal a territorial authority’s decision on an outline plan to the Environment Court.

We recommend that clause 116 be deleted from the bill because we consider that it could lead to an increase in appeals and thus delay projects.

Interim effect

As a result of the availability of direct referral and call-in via the EPA for requirements for designations, and changes to the provisions governing notification of requirements, the provisions relating to the interim effect of requirements for designations and heritage orders have been reviewed and redrafted (clauses 117A and 122 respectively).

Notice of requirement by territorial authority

Clause 118 seeks to amend section 189A of the principal Act to clarify that it applies to requirements initiated under section 189A, not section 189, and to update cross-references to the criteria to be applied in making decisions on notification.

Clause 119 would replace section 190(2) of the principal Act to allow a territorial authority to decide whether a notice of requirement from a heritage protection authority (other than the territorial authority itself) should be notified, instead of notification being mandatory, as it is in the principal Act.

We recommend substituting section 190 through new clause 119A to set out the requirements on territorial authorities for further information, notification, submissions, and hearing. Section 96 of the bill, which is to be amended through clause 72, cannot be applied in its amended form to the processing of requirements under section 189 of the principal Act, because the restrictions it contains on submissions relating to trade competition are not applicable to requirements for heritage orders.

Requirements for alterations to heritage orders

In the principal Act requirements for alterations to heritage orders are provided for in section 192(f). Section 192(f) applies section 181, which relates to requirements for designations. Section 181 in turn applies other provisions of the Act applying to requirements for original designations. We consider that the process for alterations to heritage orders would be easier to understand if requirements for such alterations were dealt with in a new, stand-alone section, and recommend inserting new clause 122A (proposed new section 195A) to achieve this.

Amendments to Schedule 1 of the principal Act

Clause 148 seeks to amend the process for decision-making as set out in Schedule 1 of the principal Act. Subclauses (10), (11), (14), and (16) to (19) set out new processes and requirements associated with the transfer of responsibility for making the final decisions on designations and heritage orders from the requiring authority (or heritage protection authority) to the local authority.

We recommend deleting subclauses (10), (11), (14), (16), (18), and (19), and amending subclause (17), as a consequence of recommending that these responsibilities under clauses 110 and 120 of the bill not be transferred. We reiterate our view that any changes to designation processes would benefit from further analysis in the wider context of a review of the way the RMA manages infrastructure as a whole.

Matters referred directly to Environment Court

Clause 155 would require any resource consent or notice of requirement that was lodged and accepted before the day after the date of Royal assent (clause 2(3) of this bill) to be determined in accordance with the principal Act prior to the amendment.

We recommend deleting clause 155, as it is a transitional clause that duplicates clauses elsewhere.

Security for costs

While experienced RMA parties know that the courts have rarely awarded security for costs against bona fide community groups, we are concerned that applicants may, as they have in the past, use the threat of this provision to deter submitters from taking part in the process at all. That is why Parliament removed that provision from the bill in 2003.

The court already has power to strike out appeals that are frivolous, vexatious, or without merit and we believe that appeals which do not fall at these hurdles should be allowed to proceed without further hindrance to the democratic process.

This bill goes much further than the pre-2003 provision, which allowed security for costs to be awarded only for appeals. With the new provisions for direct referral to the Environment Court, appellants do not even get a hearing at the council level before they face this barrier at the first hearing.

Clause 131—joining appeals, section 274

The Green Party opposes clause 131 and believes focus on excluding trade competitors will also exclude genuine community groups. The ability to join appeals brought by other participants has been a valuable safeguard of democracy for parties who are voluntary and unresourced, not focused full-time on RMA matters, who may not hear of an appeal deadline in time to participate.

We are not convinced that the Attorney-General will necessarily be proactive enough to defend the public interest if community groups are excluded.

Discounts for late consent processing (clause 25)

A mandatory discount is to be set for late consent processing that is the fault of the council. Regulations are to be made to determine how fault is to be assessed, and to set dispute resolution procedures. We are concerned that a contestable process for determining fault and dispute resolution processes will take up valuable time for the council and the applicant that would be better spent getting on with the job. Parliament is unable to assess the workability of the regulations as we will not see them. In general, we prefer such matters to be dealt with in primary legislation.

Tree protection rules

The Green Party shares the desire to reduce the cost and time delays of 4,000 consent applications for tree work, but believes the blanket protection provision could be streamlined to allow trimming as a permitted activity, except for trees specifically scheduled. Applications for tree removal, other than for specifically scheduled trees, could be made on site by delegated authority.

We are concerned that it is those urban areas undergoing the most rapid densification where trees are most valued by the community and are most at risk from new development.

This legislation replaces the cost and complexity of many resource consent applications with the cost and complexity of individually identifying and scheduling all important trees. There is no doubt, in our view, that valued urban trees will be lost under this amendment.

Public notification restricted

The amendments to sections 93 and 94 are less complex than in the bill as introduced, and their effect may be little different from the status quo, but once again the changed wording creates uncertainty. It is hard to discern the real purpose of the changes—whether it is, as the heading in the commentary states, to restrict public notification, or, as the Minister told us in the committee, to give councils discretion to use their judgement so that they have to spend less time writing a long report to justify their decision. The Minister explicitly told us his purpose is not to see fewer applications notified.

We note that there have been some very poor council judgements on notification in the past, and that these can be challenged only by judicial review as successive Governments have not brought into force section 115(3) of the Resource Management Amendment Act 2005 that would allow appeals on notification decisions to the Environment Court. To further restrict grounds for judicial review, which happens rarely anyway, is to impose even less discipline on councils’ notification decisions and encourages councils to err further towards not notifying.

Minister of Conservation’s power in the coastal marine area

The Minister of Conservation’s role in decisions on restricted coastal activities is that of the landowner, on behalf of the public. Restricted coastal activities are major works in public space for private benefit and it is appropriate that the Minister exercise this role. We agree that the end of the hearings process is not the best place to do it, and welcome the suggestion that the role of the Minister in relation to coastal consents be reviewed in phase two of the reforms, but believe it would have been appropriate to leave this provision unamended until decisions had been made on the wider issues, not least of which is the review of the Foreshore and Seabed Act 2004 and the role of Māori customary title in the coastal marine area.

Requiring authorities

One matter where we welcomed the bill as introduced was the removal of the consenting powers of requiring authorities. These powers were designed for public authorities, that is, the Crown, for projects of public good, and include the power to take land (with compensation). These days, requiring authorities are increasingly private organisations acting in their private, for-profit interests and we believe it is not appropriate for them to have such sweeping powers. We are disappointed the committee has chosen to remove this provision. We note that this will form part of the phase two considerations, as giving this role to an Environmental Protection Authority could address concerns that a public authority is required, while ensuring national consistency and avoiding council-vested interest.

Conclusion

The bill is much improved as it leaves select committee and many of our most serious criticisms have been addressed. However, the issues outlined above, our lack of confidence that the bill will make the consenting process any easier or faster, and our belief that many of its components will weaken New Zealand’s environmental protection laws and restrict the community’s participation in their own places and use of their own natural resources, lead to our decision to continue to oppose the bill.