Seven things you should know about the latest RMA reforms
By Michelle Hooper - October 2017
The Resource Legislation Amendment Act 2017 (RLAA) has made important changes to the Resource Management Act 1991 (RMA) and four other Acts across a range of areas. Many of these changes are contentious and there has been a clash of views over whether the RMA is fine as it stands, needs wholesale reform, or whether “tinkering” is the right approach.
This article identifies seven things that you should know about the RLAA.
The RLAA enables central government to provide more direction to Councils
- In particular:
- Section 11 of the RMA will be amended from 18 October 2017 to provide that subdivision is permitted unless expressly restricted by rules in a district plan or a national environmental standard. This reverses the current statutory presumption and is intended to help increase the supply of land for housing.
- Changes have been made to the scope and process for developing National Environmental Standards and National Policy Standards.
- The types of regulations that can be made under the RMA have been expanded. For example, a new section 360D has been inserted in the RMA to enable regulations to be made that prohibit or remove rules that duplicate or overlap with other legislation.
- New sections 58B to 58J have been inserted in the RMA to require the creation of National Planning Standards. The first set of National Planning Standards must be in place by 18 April 2019.
- A new section 18A has been inserted in the RMA to require decision-makers to follow procedural principles that are intended to increase efficiency.
- Section 6 of the RMA has been amended to include “the management of significant risks from natural hazards”.
- Sections 30 and 31 of the RMA have been amended to expand the functions of councils and territorial authorities under the RMA to include the establishment, implementation, and review of objectives, policies and methods to ensure that there is sufficient residential and business development capacity to meet expected demand.
- The division of power and responsibility between central government and local government is a key clash of recent times. These new provisions place more power with more central government, but more responsibility with local government. Issues of centralisation and devolution remain contentious, and will continue to be a matter for debate.
The RLAA has made changes to the plan-making process under the RMA to provide more flexibility in the plan-making process, and to enhance Māori participation
- Changes have been made to the standard process for making and changing plans and regional policy statements under Part 1 of Schedule 1 of the RMA: for example, Councils now have the option to limit notification for plan changes, if all directly affected parties can be identified. Schedule 1 has also been amended so that it is clear that designations and heritage orders can be included in partial district plan reviews.
- In addition to the standard planning track, there is now:
- An optional streamlined planning process which, if adopted, will provide flexibility in the planning process and timeframes to suit the specific issues and circumstances; and
- An optional collaborative planning process which, if adopted, will provide a process for community participation at the front end of the planning process.
- Changes have been made to enhance Māori participation and Mana Whakahono a Rohe: Iwi participation agreements have been introduced.
The RLAA has made changes to the RMA consenting process
- These changes are designed to increase time and cost efficiencies, and to seek to give applicants more certainty about whether an application will be notified. For example, with effect from 18 October 2017:
- A new section 87BA will come into force, to require Councils to treat boundary activities as permitted if written approval for the activity is given by each owner of an allotment with an infringed boundary.
- A new section 87BB will come into force, which will enable Councils to decide that an activity is permitted if the rule breaches are “marginal or temporary”, and the criteria in the new section provision are met.
- A new fast track process for resource consents will be introduced. The time limit for public notification or limited notification for fast track applications will be 10 working days. The time limit for all other applications will remain at 20 working days.
- A new step by step process for determining whether to notify resource consents will apply (see new sections 95A and 95B). Under the new process, applications for certain activities cannot be notified (e.g. a restricted discretionary activity or discretionary activity cannot be notified if the activity is a subdivision of land or a residential activity).
- A new section 360H will enable regulations to be made which to limit who may be considered an affected person.
- Section 220(d) is amended to broaden the range of natural hazards in respect of which a condition on a subdivision consent can be imposed.
- Notification is less a political football than a reform boomerang. Some see notification as critical, while many planners advertise and promote their non-notification records. These reforms – which of course follow others (see the Streamlining and Simplifying Bill of 2009) – highlight the clash between private and public interests which remains a critical topic of RMA debate.
The RLAA repeals the provisions in the RMA relating to financial contributions
- Councils will not be able to require a financial contribution as a resource consent condition after 18 April 2022.
- Funding for new infrastructure will need to be through other methods, such as:
- Development Contributions under the Local Government Act 2002.
- Resource consent conditions to require the construction of infrastructure.
- Council construction of infrastructure, with targeted rates on users of the new development to repay the investment.
- Alternative funding sources (e.g. Housing Infrastructure Fund).
- Simplifying this regime by removing financial contributions will strike some as beneficial; others would like more attention to local government funding options (for example: see Local Government New Zealand’s discussion paper on the funding of local government in New Zealand).
The RLAA makes changes to Environment Court processes
- These seek to improve the Environment Court process:
- Section 85 of the RMA has been amended to enable the Environment Court to direct councils to acquire land, as an alternative to modifying, deleting or replacing the provision in the plan which renders the land incapable of reasonable use.
- A new section 357AB has been inserted, to enable an applicant who has objected to a resource consent decision to require their objection to be heard by a hearings commissioner, if their objection relates to a decision described in subsections 357A(2) to (5).
- Section 120(1) of the RMA has been amended to provide that there is no right of appeal to the Environment Court against a decision of a consent authority in respect boundary activities, subdivisions and residential activities, unless those activities are a non-complying activity.
- The RMA has been amended to encourage judicial conferences and alternative dispute resolution.
- Sections 279 and 280 of the RMA have also been amended to increase the range of orders that Environment Court Judges and Environment Commissioners can make when sitting alone.
In addition to the changes to the RMA, the RLAA has made changes to four other Acts
- For example:
- Changes have been made to the land acquisition process under the Public Works Act 1981 to enable additional compensation to be paid.
- The Conservation Act 1987 has been amended to align the application process for concessions and access arrangements with resource consents under the RMA.
- The Reserves Act 1977 and the RMA have been amended to enable a joint process to be used for exchanges of reserves and resource consent applications and/or plan change requests.
- The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) has been amended to require publicly notified marine consent applications for activities restricted under section 20 of the EEZ Act to be processed using a board of inquiry process which is similar to the process used under the RMA.
There has been a clash of views over the RMA reforms
- In one corner, you have experienced RMA practitioners who argue against the changes, putting forward the view that the RMA is a fundamentally sound piece of legislation. In the other corner, you have policy bodies such as the New Zealand Productivity Commission calling for more reform. Across a range of issues – the role of central government vs. local government, public participation vs. private property rights, enabling development vs. protecting the environment – there is a clash of views.
- Labour, the Greens, New Zealand First, Act and United Future all voted against the RLAA. The politics and disparity of views on RMA reform were in evidence in the lead up to the election.
More change is likely. In the meantime, you should be aware of the above changes as they will have a number of practical implications.
Michelle is an Associate in our Property Team and can be contacted on 07 958 7432.