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Naturally Resourceful

02 Nov 2009

Practical Implications of the RMA Amendments for Councils

The goal of the Resource Management (Simplifying and Streamlining) Amendment Act 2009 (RMAA) is to simplify and streamline processes under the Resource Management Act 1991 (RMA). Some of the amendments are inconsequential and others require more significant departures from existing processes.

This FYI outlines what Councils need to do to comply with the amended provisions on a day to day basis and to ensure that staff are familiar with the new processes.

Essentials

Delegations and Warrants

Update delegations to staff, committees and hearings commissioners to ensure that those persons have the necessary powers under new RMA provisions (especially notification, Council's role on direct referral, and projects of national significance). It is also a good time to rethink who should be doing what. For example, who should be responsible for:
- expressing the Council's opinion to the Minister about whether the Minister should refer a matter to the Environment Court or a board of inquiry?
- suggesting members for a board of inquiry?
- deciding an applicant's request for direct referral of an application to the Environment Court?
- providing a discount on administrative charges if consent processing timeframes are not met?
- if submitters request independent commissioners, estimating how much a councillor hearing would have cost for the purpose of dividing the cost between the applicant and the submitters who made the request?
- applying to the Environment Court for an order that a proposed rule has legal effect from the date of notification, or recommending to the Council which rules only have legal effect once they are operative?
- determining whether the Council's plan or proposed plan duplicates or conflicts with a NES and, if so, that the plan or proposed plan requires amendment?
If enforcement officer warrants refer to specific sections and subsections, check the warrants to ensure they still cover the appropriate powers following the subtle changes to section 332.

Consent Processing

Understand the new notification and service requirements and adapt processes and templates for notification and service decisions. The old test presumed public notification unless the activity's effects would be minor; the new test starts from a neutral position and requires full notification if the effects will be more than minor (or in other specific situations, including the refusal of a section 92 request or where the plan or a NES requires full notification). This is a subtle change and only time will tell whether it makes any difference in practice, but Councils will need to word their notification decisions carefully to ensure they reflect the new test.
Update templates for officer reports. The templates need to guide officers through the correct process for considering consent applications.
Update templates for standard letters. Again, these will need to reflect the amended provisions, tests, and timeframes.
Update internal policies, processes and workflows to reflect the new timeframes in the RMA (especially the curtailed ability to stop the clock while waiting for further information). Councils will need to ensure their initial requests for further information are comprehensive, and consider carefully the distinction between deficient applications which should be rejected under section 88(3), information needed for notification, and information needed prior to the hearing or officer decision.
Consider how the Council will practically identify and filter out submissions that relate to trade competition. A trade competitor or their surrogate can only make a submission or be a section 274 party if they are "directly affected" by an adverse environmental effect that does not relate to trade competition or its effects.
Be aware that once a consent applicant has exercised the right of reply, the hearing must be concluded within 10 working days. The hearing cannot be adjourned indefinitely to allow extra time for writing the decision (however the right of reply need not be exercised immediately).
Be aware of the modified requirements for what a resource consent decision must contain. In particular, decisions can cross-reference other documents instead of repeating them, and decisions on non-notified applications must still be in writing but only have to state the reasons for the decision rather than cover matters such as plan provisions and issues in contention.

Plans and Plan Changes

Understand the timing of when rules have legal effect. In general, the default date is the date of notification of the Council's decisions on submissions (unless delayed by the Council or brought forward by Court order). Rules protecting particular resources (eg water, soil, significant vegetation or historic heritage) take effect as soon as the proposed plan is notified.
Amend plans or proposed plans to remove rules that duplicate or conflict with provisions contained in a NES, or include any provisions as directed by a NPS. This can be done without using the usual processes under Schedule 1, but amendments based on a NES must be made as soon as practicable after the NES comes into force.
Review district plan tree protection rules. Rules can no longer prohibit or restrict the felling, trimming, damaging or removal of trees in an urban environment unless the trees are specifically identified in the plan or the trees are in a reserve or conservation management area.
Understand the changes to the First Schedule process. For example, further submissions may only be made by persons who have standing, submissions based on trade competition are barred at all stages, and appeals may not seek withdrawal of the whole proposed policy statement or plan.
Consider when and how the Council will complete a compulsory 10 year review for its plans. A "full review" is no longer required, but Councils must review each provision at least once every 10 years. This can be done by whatever means Councils choose (eg a rolling review or plan changes). If full reviews are not proposed, Councils will need to keep track of the date of the last review of each provision.

Transitional Provisions

Be aware of the transitional provisions in the RMAA. The new and amended RMA provisions do not apply to matters arising before 1 October 2009 (consent applications, notices of requirement, proposed plans, plan changes and variations lodged before that date, as well as enforcement proceedings for offences arising before that date). One exception is applications for restricted coastal activities, which are processed under the new provisions if they had not been notified as at 1 October 2009. The transitional provisions are also relevant to Councils' update of their delegations (discussed above) because the pre-October 2009 delegations will need to remain in place alongside the updated delegations until all transitional matters have been concluded.

Optional

Adopt a policy for discounting administrative charges where consent processing timeframes are not met and the Council is at fault. Adopting a policy is not compulsory, and regulations under section 36AA will act as a default policy unless Councils choose to adopt a more generous position in their own policy. The Minister must consult with Councils about the proposed regulations, so Councils will have a chance to comment on the regulations before they come into force.
Use the RMA amendments as an opportunity to spring clean existing processes and templates.
Train staff and councillors about the amended RMA to help the Council to better meet its obligations.

Summary

The amendments to the RMA are intended to simplify and streamline processes and reduce costs, delays and administrative burdens. The extent to which that actually occurs remains to be seen, but in the meantime immediate changes are required.

Training and education will help Councils to better meet their obligations under the Act, and changes to internal reports, templates, and processes will be useful tools to help achieve the desired results.

Our Local Government and Environment teams in Auckland, Wellington and Christchurch are familiar with the amendments and their implications, and are ready to help Councils with the transition.