Resource Management Amendment Bill

Resource Management Amendment Bill

Government Bill

180—1

Explanatory note

General policy statement

The overarching objectives of the Resource Management Amendment Bill (the Bill) are to reduce complexity, increase certainty, restore public participation opportunities, and improve Resource Management Act 1991 (RMA) processes. The Bill also supports the urgent need to improve freshwater management and outcomes in New Zealand.

The Bill principally amends the RMA and the Resource Legislation Amendment Act 2017 (RLAA). The Bill includes consequential amendments to the District Court Act 2016, Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, Remuneration Authority Act 1977, and Judicial Salaries and Allowances (2018/19) Determination 2018.

Proposals

This Bill repeals a number of changes made by the RLAA, and provides a number of improvements and clarifications to existing RMA processes in relation to resource consents, compliance and enforcement, and Environment Court matters.

Reducing complexity, increasing certainty, and restoring public participation by repealing changes made by RLAA
Reducing the powers of the Minister for Environment to prohibit or overturn local plan rules

Section 360D of the RMA enables regulations to prohibit or overturn rules in council plans that duplicate or overlap with other legislation. This Bill repeals the ability to make such regulations.

Removing preclusions on public notification and appeals for subdivision and residential activity resource consents, and restrictions on scope of appeals

Certain types of resource consent applications cannot currently be notified to the public for submissions, or appealed to the Environment Court by applicants or submitters. The Bill re-enables submissions and appeals when appropriate, for subdivision and residential activity applications, and removes the ability for regulations to prevent notification of other types of applications. The Bill also reintroduces the ability for submitters to appeal resource consent decisions regarding issues that were not included in their original submission.

Repealing regulation-making power for additional fast-track activities

District land use resource consent applications with a controlled activity status are subject to a 10-working-day “fast-track” process, rather than the standard 20-working-day process. The Bill repeals the ability to fast-track other types or classes of activities, or to prescribe information requirements for fast-track applications, by regulation.

Reversing change to subdivision presumption

Under the original RMA, subdivision was presumed to be restricted unless explicitly permitted by a district plan rule. The RLAA reversed this, so that subdivision would be permitted unless explicitly restricted by a district plan. This Bill reinstates the original presumption, which existing district plans were initially formulated under.

Reinstating use of financial contributions except for notices of requirement lodged by Minister of Education or Minister of Defence

Consent authorities can currently require resource consent holders to pay financial contributions (money or land) as consent conditions in particular circumstances. The RLAA contains provisions to phase out financial contributions so that consent authorities would no longer be able to require these from April 2022 onwards. The Bill repeals the relevant RLAA provisions so that consent authorities can continue to charge financial contributions after April 2022.

In order to avoid a risk that unreasonable delays and costs are imposed on the development of Crown assets (including new State schools and defence facilities), the Bill restricts the ability to recommend or impose financial contribution conditions on any notices of requirement lodged by the Minister of Education or the Minister of Defence as a requiring authority.

Improving resource management processes and enforcement provisions
Enabling applicants to have processing of non-notified resource consent applications suspended

Resource consent applicants are currently able to suspend processing of their limited and publicly notified applications for up to 130 working days by request to the consent authority. The Bill enables applicants to also suspend processing of their non-notified applications for up to 20 working days.

Enabling consent authorities to suspend processing resource consent applications until fixed administrative charges are paid

Consent authorities are able to fix, in advance, charges payable by resource consent applicants to cover processing and administration costs. The Bill enables consent authorities to suspend their processing of resource consent applications, and pause the applicable statutory time frames, when fixed charges payable at lodgement or notification are outstanding (until they are paid).

Extending time period to lodge retrospective resource consent applications for emergency works

During states of emergency, persons exercising emergency powers can undertake particular activities without being subject to the general restrictions of the RMA. In these situations, the person must advise the relevant consent authority of their activity, and then apply retrospectively for any necessary resource consents within 20 working days. The Bill extends this period to 60 working days.

Enabling review of conditions of multiple resource consents concurrently

The Bill makes 3 amendments to provisions for review of consent conditions, in response to new regional plan rules relating to freshwater. The Bill—

  • makes explicit that, in response to a rule, a regional council can review conditions of multiple consents concurrently:

  • allows regional land use consents to be reviewed:

  • allows these reviews to be initiated as soon as the relevant rule is operative (even if other rules in the plan are, for example, still under appeal).

Increasing maximum infringement fees under the RMA

The current maximum infringement fees that can be set in regulations under the RMA are $2,000 for stock exclusion infringement offences, and $1,000 for all other infringement offences. Specific infringement fees are set in the Resource Management (Infringement Offences) Regulations 1999. The Bill increases the maximum infringement fees that can be set in regulations under the RMA. The Bill includes the following proposed figures:

  • $2,000 for natural persons; and

  • $4,000 for all other persons (for example, companies or trusts).

Extending statutory limitation period to file charges for prosecutions under the RMA

Currently a 6-month statutory limitation period applies for a person to file charges for certain offences under the RMA. The Bill increases this to 12 months, which is consistent with the statutory limitation period under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.

Enabling Environmental Protection Authority to take enforcement action under the RMA

Responsibility for enforcement under the RMA generally sits with local government. The Bill empowers the Environmental Protection Authority (EPA) to also undertake investigation and enforcement actions under the RMA. This is to enhance accountability and provide support for those currently responsible for RMA enforcement. Specifically, the Bill provides for the EPA to—

  • authorise enforcement officers:

  • apply to the Environment Court for declarations:

  • commence investigation and enforcement actions where no local authority is involved:

  • assist councils in investigation and enforcement actions already under way:

  • intervene, and take over the investigation and enforcement functions of councils in relation to specific cases, with procedures to be followed in such cases:

  • apply to the court to recover just and reasonable costs of investigations and prosecutions from convicted offenders:

  • gather information from councils to exercise enforcement actions:

  • report on the performance of its enforcement functions in its annual report, including the outcomes of enforcement actions it has taken (where it would not prejudice the maintenance of the law).

Protecting special advisors to Environment Court

The Environment Court can appoint special advisors to provide technical assistance in complex cases. Technical advisors in other jurisdictions are protected against legal proceedings for actions they take while acting in good faith in the performance of their duties. The Bill gives special advisors to the Environment Court similar protection from legal proceedings.

Change in title for Principal Environment Judge

The Bill changes the title of the Principal Environment Judge to Chief Environment Court Judge to better reflect the role and responsibilities of the head of a court.

Alternate Environment Judges

The Bill also makes 2 amendments relating to the appointment of alternate Environment Judges. The Bill—

  • clarifies that acting Maori Land Court Judges and acting District Court Judges may be appointed as alternate Environment Judges:

  • enables retired Environment Judges (who are not already Maori Land Court Judges or acting Maori Land Court Judges, District Court Judges or acting District Court Judges) to be appointed as alternate Environment Judges, if the Chief (formerly Principal) Environment Judge is satisfied that this is needed for the operation of the Environment Court.

Clarification of process for making national environmental standards

A single board of inquiry process may be followed to make a national environmental standard (NES), a national policy statement (NPS), or both. The RMA prescribes final procedural requirements for the relevant Minister to follow in response to a board of inquiry or other recommendation for an NPS, but not for an NES. The Bill makes a minor amendment to clarify that the same steps that apply to an NPS also apply to an NES.

Improving freshwater management
New specialised planning process for freshwater

To support the urgent need to improve freshwater management, the Bill provides a new plan-making process that councils must use for proposed regional policy statements or regional plans (or changes) for freshwater. The Bill requires that councils notify changes to their regional policy statements and regional plans to implement the National Policy Statement for Freshwater Management (NPS-FM) no later than 31 December 2023, and make final decisions by 31 December 2025.

The Bill provides for the Minister for the Environment to appoint freshwater hearings commissioners, chaired by a retired or current Environment Judge. Hearing panels are to be then convened. Each panel will generally comprise 2 freshwater hearings commissioners, 2 accredited local councillors (or commissioners nominated by council), and 1 accredited person with an understanding of tikanga Māori and mātauranga Māori (selected from nominations from local tangata whenua). These panels will have enhanced hearing powers, including directing conferencing of experts, appointing special advisors, cross-examination, and mediation.

Each panel must provide recommendations to the relevant council on submissions and any related freshwater planning matters, and can recommend changes to the proposed documents. The council must make decisions on the panel’s recommendations within 20 working days, and can accept or reject them (and provide alternative provisions).

The Bill provides for merits appeals to the Environment Court on those parts of the panel’s recommendations that were rejected by the council, and further appeals on points of law to the High Court. Where the council accepts the panel’s recommendations, the Bill enables appeals to the High Court on points of law and further appeals to the Court of Appeal (subject to leave being granted).

Repealing and replacing collaborative planning process

To reduce complexity, the Bill repeals the collaborative planning process that was introduced by the Resource Legislation Amendment Act 2017, which will be replaced in Part 4 of Schedule 1 of the RMA by the new freshwater planning process.

Departmental disclosure statement

The Ministry for the Environment is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessments

The Ministry for the Environment produced regulatory impact assessments in June and September 2019 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides for the commencement of the provisions of the Act. Clauses 24 and 26 are to come into force on the day that is 3 months after Royal assent. The rest of the Act comes into force on the day after the date on which it receives the Royal assent.

Part 1Amendments to Resource Management Act 1991

Clause 3 provides that Part 1 amends the Resource Management Act 1991 (the Act).

Clause 4 amends section 2 (which defines terms used in the Act) to replace the definition of enforcement officer with a definition that includes enforcement officers authorised by the EPA, to define terms relating to the freshwater planning process, and to clarify the definition of fresh water.

Clause 5 amends section 4 to include the EPA as one of the bodies that may bring certain proceedings against an instrument of the Crown. This is a result of the new enforcement functions of the EPA conferred by this Bill.

Clause 6 amends section 11 to reinstate the restrictions in the Act relating to subdivisions before it was amended by the Resource Legislation Amendment Act 2017. Currently, a person may subdivide land if—

  • the subdivision—

    • is expressly allowed by a resource consent; or

    • does not contravene a national environmental standard, a rule in a district plan, or a rule in a proposed district plan for the same district (if any); and

  • the subdivision is shown on specified survey plans.

New section 11(1)(a) permits a person to subdivide land if—

  • the subdivision is expressly allowed by a national environmental standard, a rule in a district plan, a rule in a proposed district plan for the same district (if this is a proposed plan), or a resource consent; and

  • the subdivision is shown on specified survey plans.

Clause 7 replaces the reference to Principal Environment Judge in section 29(1)(l) with a reference to Chief Environment Court Judge.

Clause 8 amends section 38 to reflect that enforcement offers may also be authorised by the EPA under new section 343I.

Clause 9 amends section 42C to provide that the EPA’s functions include the enforcement functions conferred by new section 343F.

Clause 10 amends section 44, in relation to the requirement that the Minister comply (among other things) with section 46A(3) before recommending a national environment standard to be made by regulations. The amendment provides that the Minister must consider any report or recommendation under section 46A(4)(c) or 51 and may make any changes or no changes to the proposed national environmental standard as the Minister thinks fit.

Clauses 11 and 12 amend sections 46A and 48 to correct minor errors in those sections.

Clause 13 repeals subpart 4 of Part 5, which relates to the collaborative planning process, and replaces it with a new subpart that establishes the freshwater planning process. Regional councils must comply with the freshwater planning process when preparing a freshwater planning instrument. A freshwater planning instrument means a proposed regional plan, regional policy statement, or change or variation that—

  • gives effect to the National Policy Statement for Freshwater Management 2020; or

  • otherwise relates to freshwater.

No later than 6 months after a regional council publicly notifies a freshwater planning instrument, it must submit certain documents to the Chief Freshwater Commissioner to commence the freshwater planning process. The public hearing of submissions on the freshwater planning instrument will be conducted by a freshwater hearings panel convened by the Chief Freshwater Commissioner. The panel will comprise 5 freshwater hearings commissioners of which 2 are appointed by the Minister, 2 are appointed on the nomination of the regional council, and 1 appointed on the nomination of local tangata whenua. (New clause 57 of Schedule 1 allows the Chief Freshwater Commissioner to adjust the size of the panel in certain circumstances.)

The freshwater hearings panel must conduct the public hearing of submissions in accordance with its powers and the procedures set out in new Part 4 of Schedule 1. After the hearing of public submissions is finished, the panel must make recommendations to the regional council on the freshwater planning instrument. The regional council may accept or reject any recommendation. A person who made a submission may appeal (in accordance with new Part 4 of Schedule 1) in respect of the regional council’s decision to reject or accept a recommendation.

Clause 14 repeals section 80C(4)(b) as a consequence of the removal of the collaborative planning process.

Clauses 15 and 16 relate to fast-track applications for a resource consent. The definition of fast-track application in section 87AAC(1) is amended so that it no longer includes an activity prescribed under section 360G(1)(a). Section 88 is consequentially amended because section 360G is repealed.

Clause 17(1) amends the table in section 88B. The first column of the table lists provisions in the Act that prescribe time limits that a consent authority must comply with when processing or determining an application for a resource consent. The second column of the table lists provisions that require certain time periods to be excluded from the time limits in the first column. The table is updated to reflect that the period during which a non-notified application is suspended under new section 91D must be excluded from the time limit in section 95.

Clause 17(2) amends section 88B to provide that any time period that the consent authority decides to exclude under new section 88H must be excluded from the time limit described in section 95.

Clause 18 makes a minor amendment to section 88E.

Clause 19 inserts new sections 88G and 88H.

New section 88G prescribes the period that must be excluded from every applicable time limit under section 88B, if the processing of a non-notified application is suspended under new section 91D.

New section 88H relates to administrative charges (fixed under section 36) that an applicant must pay on lodgement or on notification of a resource consent application. New section 88H enables the consent authority to exclude from the time limit described in section 95 the period during which an applicant has failed to pay an administrative charge.

Clauses 20 to 22 amend sections 91A to 91C to clarify that those provisions apply to notified applications in contrast to new sections 91D to 91F, which apply to non-notified applications.

Clause 23 inserts new sections 91D to 91F, which relate to the suspension of processing by a consent authority of a non-notified application at the request of an applicant. New sections 91D to 91F are based on the provisions in sections 91A to 91C in relation to notified applicants. However, if the processing of a non-notified application has been suspended for a total of 20 working days, the consent authority must either return the application to the applicant or continue to process the application. The period of any suspension must be excluded from every applicable time limit in section 88B.

Clause 24 amends section 95A, which states how a consent authority must determine whether to publicly notify an application for a resource consent. Currently, an application for a restricted discretionary or discretionary activity is precluded from public notification if the activity is a subdivision of land or a residential activity. The amendment removes that preclusion. Section 95A(5)(b)(iv) is repealed because section 360H is repealed.

Clause 25 amends section 95B because section 360H is repealed.

Clause 26 amends section 120 by removing—

  • the restrictions on appeals against decisions relating to subdivisions and residential activities; and

  • the requirement that submitters may appeal only on matters raised in their submission.

Clause 27(1) replaces section 128(1)(b) to enable a consent authority to review a coastal, water, or discharge permit, or a land use consent granted by a regional council, if—

  • a regional plan contains a rule that relates to maximum or minimum levels or flows or rates of use of water, or minimum standards of water quality or air quality, or ranges of temperature or pressure of geothermal water; and

  • the rule, the plan, or the part of the plan that contains the rule has been made operative; and

  • the regional council considers it is appropriate to review the conditions of the permit or consent in order to enable the levels, flows, rates, or standards set by the rule to be met.

Clause 27(2) and (3) amends section 128 to enable a consent authority to review the conditions of resource consents together if those consents are affected by a rule referred to in new section 128(1)(b).

Clause 28 amends section 129 to require a consent authority to advise a consent holder that the authority intends to review the conditions of the resource consent alongside other resource consents affected by a rule referred to in new section 128(1)(b).

Clause 29 amends section 149P to restrict conditions that a board of inquiry may impose when considering a notice of requirement for a designation. If the requiring authority is the Minister of Education or the Minister of Defence, a board may not impose a condition requiring a financial contribution.

Clause 30 makes a similar amendment to that made by clause 29 in relation to the conditions that may be imposed by the Environment Court under section 149U.

Clause 31 amends section 170 as a result of the removal of the collaborative planning process.

Clause 32 amends section 171 to provide that if the requiring authority is the Minister of Education or the Minister of Defence, a territorial authority may not recommend a condition requiring a financial contribution.

Clauses 33 to 35 amend sections 174, 198E, and 198K to provide that if the requiring authority is the Minister of Education or the Minister of Defence, the Environment Court may not impose a condition requiring a financial contribution.

Clause 36 makes a consequential amendment to section 248.

Clause 37 amends section 249 to enable an acting District Court Judge, an acting Maori Land Court Judge, and a retired Environment Judge to be eligible for appointment as an alternate Environment Judge.

Clause 38 amends section 250 to provide for the appointment of acting District Court Judges and acting Maori Land Court Judges as Environment Judges or alternate Environment Judges, and the appointment of retired Environment Judges as alternate Environment Judges.

Clauses 39 to 45 replace references to Principal Environment Judge with references to Chief Environment Court Judge in sections 250A to 252, 255, and 259.

Clause 46 amends section 261 to confer immunity from legal proceedings on special advisors when acting in good faith in the performance of their duties.

Clauses 47 to 52 replace references to Principal Environment Judge with references to Chief Environment Court Judge in sections 265, 279, 280, 281, 288A, and 288B.

Clauses 53 to 58 amend sections 311, 316, 324, 325, 325A, and 325B as a consequence of the EPA’s new enforcement functions. The amendments enable the EPA to carry out certain enforcement activities that a local authority is permitted to carry out.

Clause 59 amends section 330B, which allows certain activities (which would otherwise contravene sections 9, 12, 13, 14, and 15) to be carried out during a state of emergency declared under the Civil Defence Emergency Management Act 2002. The amendment enables the person authorising the activity to apply to the appropriate consent authority within 60 working days (instead of 20 working days) to obtain the necessary resource consents for the activity.

Clauses 60 and 61 amend sections 332 and 336 as a consequence of the EPA’s new enforcement functions. The amendments enable the EPA to carry out certain enforcement activities that a local authority is permitted to carry out.

Clause 62 extends the limitation period in section 338(4) in respect of an offence against certain provisions of the Act. The limitation period is extended from 6 to 12 months after the date on which the contravention giving rise to the offence becomes known.

Clauses 63 and 64 amend sections 339C and 342, which relate to the payment of fines when the EPA is assisting a local authority in a proceeding.

Clause 65 amends section 343D to require any infringement fee relating to an infringement notice issued by the EPA to be credited to a Crown Bank Account.

Clause 66 inserts new Part 12A, which provides for the EPA’s new enforcement functions.

New section 343E defines terms used in new Part 12A. A key term is the definition of enforcement action, which means—

  • an inspection, investigation, or other activity carried out in accordance with the Act for the purpose of determining whether there is or has been—

    • a contravention of a provision of the Act, any regulations, a rule in a plan, a national environmental standard, or a resource consent; or

    • a failure to comply with a requirement of an enforcement order or abatement notice; or

  • an application for an enforcement under section 316 or an interim enforcement order under section 320; or

  • the service of an abatement notice under section 322; or

  • the laying of a charge relating to an offence described in section 338; or

  • the issuing of an infringement notice under section 343C; or

  • an inspection, investigation, other activity carried out in accordance with this Act for the purpose of an application, an abatement notice, a charge, or an infringement notice described above.

New section 343F enables the EPA to perform any of the following enforcement functions if satisfied that performing the function is necessary or desirable to promote the purpose of the Act:

  • the EPA may take enforcement action and any subsequent action in relation to an incident if the local authority has not commenced taking any enforcement action in relation to the same incident:

  • the EPA may, with the agreement of a local authority, assist the local authority with an enforcement action in relation to an incident and any subsequent action:

  • the EPA may intervene in an enforcement action of a local authority in relation to an incident by taking over the enforcement action and taking any subsequent action.

New section 343G applies when the EPA intervenes in an enforcement action of a local authority. The EPA may not intervene in an enforcement action that has already been executed by a local authority in respect of a person.

New section 343H enables the EPA to change its enforcement function in relation to an incident if it considers that the circumstances require the change in function.

New section 343I provides for the appointment of EPA enforcement officers.

New section 343J enables the EPA to require information from a local authority that the EPA requires for an enforcement action.

New section 343K states matters that the EPA must provide in its annual report required under section 150 of the Crown Entities Act 2004.

New section 343L enables the court to order a person convicted of an offence under the Act to pay the EPA’s costs relating to the prosecution.

Clauses 67 and 68 amend sections 353 and 355B as a consequence of the EPA’s new enforcement functions.

Clause 69 consequentially amends section 357.

Clause 70 amends section 360(1) in relation to infringement fees and notices for infringement offences prescribed under that section.

Currently, section 360(1)(bb) enables regulations to prescribe an infringement fee not exceeding $2,000 for infringement offences prescribed under section 360(1)(ho) (exclusion of stock from water bodies). An infringement fee not exceeding $1,000 may be prescribed for other infringement offences.

Section 360(1)(bb) is replaced with a provision that enables regulations to prescribe, in respect of any infringement offence prescribed under that section, an infringement fee—

  • not exceeding $2,000, in the case of a natural person; and

  • not exceeding $4,000, for a person other than an natural person.

Clause 71 repeals sections 360D, 360E, 360G, and 360H. Sections 360D and 360E enable regulations to prohibit or remove rules that duplicate, overlap with, or deal with subject matter already included in other legislation. Sections 360G and 360H enable regulations to prescribe matters relating to a consent authority’s identification of—

  • fast-track applications; and

  • activities that are to be precluded from public notification or limited notification; and

  • who may be considered an affected person in respect of an application for a resource consent.

Clause 72 amends Schedule 1 by—

  • repealing clauses 4(2) to (2B) and 21(3A); and

  • replacing Part 4 with a new Part 4, which relates to the freshwater planning process that all freshwater planning instruments must undergo.

New Part 4 of Schedule 1, among other things—

  • requires that a regional council must, no later than 6 months after it has publicly notified a freshwater planning instrument, submit specified documents to the Chief Freshwater Commissioner; and

  • requires the Chief Freshwater Commissioner to convene a freshwater hearings panel to hear public submissions on the freshwater planning document; and

  • provides for the composition of a freshwater hearings panel, including nominations for appointment of freshwater hearings commissioners to the panel from the regional council and local tangata whenua; and

  • provides for the functions and powers of the freshwater hearings panel; and

  • requires the freshwater hearings panel to make recommendations to the regional council after the hearing of public submissions on the freshwater planning instrument; and

  • requires the regional council to publicly notify its response to those recommendations; and

  • sets out appeals that may be made in relation to the freshwater planning instrument; and

  • provides for the appointment by the Minister of freshwater hearings commissioners, including the Chief Freshwater Commissioner.

Clause 73 amends Schedule 12 to provide for transitional matters as a result of the changes made by this Bill.

Part 2Amendments to other enactments

Subpart 1—Amendments to Resource Management Legislation Amendment Act 2017

Clause 74 provides this subpart amends the Resource Legislation Amendment Act 2017.

Clause 75 repeals section 2(2).

Clause 76 repeals subpart 3 of Part 1.

Clause 77 repeals Schedules 4 and 5.

Subpart 2—Consequential amendments to other enactments

Clause 78 provides for the consequential amendments to enactments as set out in the Schedule.