Publications
FYI
Naturally Resourceful
21 Aug 2009
A "Red-Pen" Review: The Report of the Select Committee on the Resource Management (Simplifying and Streamlining) Amendment Bill
The Local Government and Environment Committee (Select Committee) reported back on the Resource Management (Simplifying and Streamlining) Amendment Bill (Amendment Bill) on 18 August 2009, and recommended a large number of amendments, including the redrafting of a host of provisions.
This FYI provides a brief summary of some of the key recommendations of interest. We intend to provide further FYIs on particular recommendations, such as the rewrite of the notification and the call-in process provisions.
We anticipate that the Second Reading of the Amendment Bill will take place in the next week, with the Select Committee indicating that it expects that the Amendment Bill will come into force by 1 October 2009.
Appeals Restricted to Points of Law Only
A key amendment of concern proposed in the Amendment Bill was the proposal to restrict appeals on planning documents to points of law only, unless leave of the Environment Court was granted to extend the scope of the appeal.
The Select Committee has recommended that this proposed amendment be deleted and full rights of appeal are maintained.
Two limits on the rights of appeal are however retained. The first is the prohibition on appeals seeking the withdrawal of a plan or policy statement as a whole. The Select Committee has clarified that this prohibition does not apply to plan changes or variations and suggested an amendment to make this explicit.
The second exception is where an appeal arises in the context of a plan giving effect to the provisions of a national policy statement. The Select Committee was of the view that in this limited circumstance it would be appropriate to limit appeals to points of law only, so as to maintain consistency in the way national policy statements are applied in planning documents.
Further Submissions
Another key concern with the Amendment Bill related to the proposal to remove the further submission process on planning documents. Again, the Select Committee has heard the concerns of submitters and recommended that some provision for further submissions be provided.
Amendments are recommended by the Select Committee to allow a restricted range of persons to lodge further submissions in support or opposition to a submission, namely:
- anyone with an interest that is greater than the public generally;
- any person representing a relevant aspect of the public interest; or
- the local authority itself.
Further submissions are to be made within 10 working days from the date public notice is given of the availability and location of a summary, and copies, of submissions.
Non-Complying Activities
Concerns about the removal of the non-complying activity status had also been expressed by a large number of submitters. The Select Committee has agreed with these concerns and recommended that the proposed amendments relating to non-complying activities be deleted.
This is a sensible recommendation that we hope will be followed as the Amendment Bill passes through the legislative process.
Blanket Tree Protection Rules
The majority of the Select Committee (the Green Party members being the minority) supported the provision in the Amendment Bill prohibiting blanket tree protection rules. Some minor amendments have been recommended to the provisions to clarify that a district plan rule cannot prohibit or restrict the felling, trimming, damaging or removal of any tree or group of trees in an urban environment unless they are identified in the plan.
The Select Committee also recommended defining “urban environment” to mean:
- an allotment no greater than 4000m²;
- that is connected to a reticulated water supply and sewerage system; and
- on which there is a building used for industrial or commercial purposes or a dwelling house.
These amendments are intended to restrict the application of the prohibition on blanket tree protection rules to urban and suburban areas, but not to rural or semi-rural areas.
Plan Development
As noted in our April 2009 FYI “Proposed reform of the RMA plan change provisions”, the Amendment Bill removed the compulsory requirement for territorial authorities to complete a full review of their plans every 10 years. The Select Committee has recommended the removal of the parallel requirements for regional planning documents.
We also commented in our April 2009 FYI that the proposed amendment requiring a full review of a district plan “if the plan no longer assists the authority to carry out its functions in order to achieve the purpose of the RMA” was vague and broad ranging.
The Select Committee has recommended the deletion of this provision, and instead suggested that section 79 be repealed and a new section substituted. The intent of the rewritten section is to clarify that local authorities can review their plans in any way they like provided each provision in the plan is reviewed at least once every 10 years.
The Select Committee has also recommended amendments to clarify that where a combined planning document is prepared, that the document clearly identify the provisions that are to be treated as provisions of a regional policy statement, regional plan, regional coastal plan or district plan, and which local authority is responsible for enforcing the relevant provisions.
Notification
The Select Committee has recommended a rewrite of the proposed notification provisions in the Amendment Bill. A further FYI will be prepared with further detail on the effect of the Select Committee’s redrafting of the notification provisions.
One key recommendation of interest is the proposed substitution of a new test for public notification to address submitters’ concerns about what constitutes "immediate environment" - a phrase adopted in the Amendment Bill. The proposed new test requires a consent authority, when assessing whether the effects of an activity may be more than minor, to ignore the effects of the proposal on persons who own or occupy the land where the activity will occur and the effects on any adjacent land owners or occupants.
Proposals of National Significance
A number of amendments have been made to the provisions relating to the call-in process for proposals of national significance, and the role of the Environmental Protection Authority (EPA). Some key recommendations include:
- extending the range of matters that can be called-in to include notices of requirement to alter a designation or heritage order, and changes to (or cancellation of) consent conditions;
- requiring the EPA to commission a planning report from the relevant local authority/authorities to put an application into context, outline the planning framework, set out the key planning issues and advise on the status of relevant activities; and
- amendments to require a board of inquiry to seek the relevant local authority’s view on a private plan change request when deciding to accept or reject it, recognising that a local authority has the expertise and knowledge of the plan.
Further details of the redrafted "call in" provisions will follow in a future separate FYI.
Discount Policy for Late Processing
The Amendment Bill proposed that local authorities be required to adopt a discount policy for the late processing of applications within 12 months of the Amendment Bill coming into force.
The Select Committee has instead proposed amendments to provide for new regulations to be made setting a default discount policy. These require the Minister to recommend the making of the regulations within 9 months after the amendment comes into force, and following consultation with local authorities.
Provision is made for local authorities to set their own discount policies. This provision will however be voluntary, rather than mandatory, as initially proposed in the Amendment Bill. A local authority’s discount policy will only override the default discount policy set in regulation if it is more generous.
Designations
The Select Committee has recommended that the reforms regarding the transfer of the decision-making role for notices of requirement do not proceed. Instead, the Committee has recommended that the issues surrounding designations be addressed as part of the package of reforms relating to infrastructure, to be addressed in the Phase 2 amendments.
Provisions Relating to Trade Competition
In our March 2009 FYI “The ‘Supermarket circus’ - Trade Competition under the RMA” we discussed the proposed amendments to the RMA to restrict trade competitors using the RMA processes for competitive advantage.
The Select Committee has suggested a number of amendments to refine and clarify the provisions, however the intent of the proposed amendments, as included in the Amendment Bill, remains unaltered.
Amendments are recommended to provide that in the case of a person appearing as a “surrogate” for a trade competitor, that the surrogate must “knowingly receive” direct or indirect help from the trade competitor, for the restrictive trade competition provisions to apply. This amendment is intended to address the concern expressed by some submitters that the provision may capture innocent persons who may unwittingly receive support from a trade competitor when, for example, fundraising.
Amendments have also been proposed to clarify what costs the Environment Court must make an order for, should a declaration be made under this part of the RMA.
The Select Committee considered that there was no need to define "trade competition" and "the effects of trade competition" as there is sufficient guidance in case law as to what these terms encompass.
As noted in our March 2009 FYI, we consider that as well intended as the proposed changes may be, it does not appear that they will succeed in shutting down all trade competition opposition.
Conclusion
The Select Committee has listened to the concerns of submitters, and has made a number of sensible recommendations particularly with respect to retaining non-complying activities; the deletion of the proposed restriction on appeals on plans and policy statements and the recommended deletion of the proposal to remove the further submission process.
As with any legislation, the final form of the Amendment Bill will only be known following the completion of the legislative process. It is possible that the recommendations of the Select Committee will not be followed, or additional amendments made.
Authors
Padraig McNamara
Partner - Public Sector
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James Winchester
Partner - Public Sector
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Michelle van Kampen
Senior Associate - Public Sector
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A key amendment of concern proposed in the Amendment Bill was the proposal to restrict appeals on planning documents to points of law only, unless leave of the Environment Court was granted to extend the scope of the appeal.
