Naturally Resourceful

19 Mar 2009

The Resource Management (Simplifying and Streamlining) Amendment Bill passed its first reading on 19 February 2009. The comments and concerns in our February FYI (The Proposed Resource Management Act Amendments - Some Preliminary Comments) remain valid. 

In this FYI, we provide additional comments in relation to the amendments to the "call-in" and designation provisions. 

We intend to or have provided further FYIs on the amendments proposed in relation to:

• trade competition;
• notification; and
• plan changes.

Streamlining processes for projects of national significance: broadened criteria for Ministerial intervention in some instances

Ministerial intervention on plan changes and variations

The Bill broadens the type of applications of national importance that Ministerial intervention can relate to. Changes to district plans, variations to proposed plans, and regional plans are now included. 

Additional criteria for Ministerial intervention - for network utility operations only

The Bill proposes to broaden the criteria for Ministerial intervention, to allow intervention for projects which may not individually be of national importance, but which play a significant role in improving or maintaining the functioning and integrity of nationally significant networks. As drafted, the amendments to section 141B(2) are limited to network utility operations that extend to, or are proposed to extend to, more than one region.

The broadened powers would not apply to all requiring authorities. They would not apply to Ministers of the Crown. The expansion or development of schools, prisons and other infrastructure by Ministers could not benefit from "call-in" unless the project was individually of national importance.

Nor would the broadened provisions benefit local authorities, as their works would very rarely apply to more than one region, and in the case of territorial authorities, are usually limited to individual districts. Projects of local or regional significance (as opposed to national significance) could at times benefit from "call-in. 

Direct referral to the Environment Court with the agreement of the consent authority

The Bill broadens the situations where direct referral to the Environment Court could occur, with the agreement of the consent authority (clause 60: new section 87C). The Bill provides an ability for both resource consents and notices of requirement to be directly referred, with the agreement of the consent authority. 

The ability to seek direct referral of a notice of requirement, with the agreement of the consent authority, would allow the fast-tracking of applications that are not otherwise of national significance (but could still be contentious).

Role of Councils in providing officer's report partially clarified

The Bill has clarified the role of local authorities where direct referral of applications to the Environment Court occurs with the agreement of the consent authority. The local authority must prepare a report, which must include conditions to be imposed if the application is granted. 

There is no corresponding provision where an application of national significance is "called-in" and heard by a Board of Inquiry or the Environment Court. A report from an officer of the territorial authority, commenting on such matters as potential effects, mitigation measures, and conditions, would also be of value for projects which are "called-in". However, the ability of a Board to commission such a report remains discretionary.

Applications for Ministerial intervention to the Environmental Protection Authority or the Minister

The Bill introduces broad provisions allowing applications for Ministerial Intervention to be made to the Environmental Protection Agency (EPA). The Bill clarifies that the EPA can consider all types of Ministerial intervention, not merely "call-in" and hearing before a Board of Inquiry. It can recommend both "call-in" and other types of intervention (such as an all of Government submission) on a single project. 

The Bill introduces a detailed procedure for how the EPA can consider an application for Ministerial Intervention. This procedure includes:

• allowing 10 working days to consider a request and make a recommendation to the Minister;
• the EPA having the ability to request further information, or commission a report on matters contained in a further information response (with the agreement of the applicant);
• the EPA giving effect to the Minister's decision and being responsible for serving notice of it.

The proposed administrative role, and tight timeframe for the EPA considering an application could streamline the process. However, the ability of the EPA to request further information on applications has the potential to delay the process. Where an application for further information is made, the 10 working day timeframe for making a recommendation to the Minister begins:

• the day after the applicant receives the further information or report;
• if the applicant does not provide the information, the day after the deadline set to receive the information expires; or
• if the applicant does not agree to an independent report being prepared, the day after the authority receives written notice of the refusal or sixteen working days after the applicant is notified of the request.

There is the potential for the EPA to make tactical requests for further information. While the Bill limits the number of times that a local authority can "stop the clock" when making further information requests, there is no express limit on the number of requests that the EPA could make, or a limit on "stopping the clock". Instead, the Bill provides for the clock to be reset, rather than recommence, at a later date when a further information request is made by the EPA. 

Retained ability to apply to the Minister for intervention

Despite the detailed process for making applications to the EPA, the Bill retains the ability for applications for Ministerial intervention to be made direct to the Minister. No guidance is given about when this option should be used. An application could not however be made to both the EPA and the Minister (clause 93: new section 141AA).

Related applications could be "called-in"

Currently, the RMA is unclear about whether ancillary applications can "catch up" and be heard with a primary application that has been called-in, and whether an application that has been "called-in" can subsequently be amended without the need for a further Ministerial decision.

The Bill addresses this uncertainty. It provides for applications to be "called-in" where they relate to a project of national significance that has already been "called-in" (clause 93: new section 141AAG). By way of example, ancillary regional resource consent applications could be "called-in" where the primary application (say a notice of requirement) has already been "called-in". This subsequent "call-in" could occur at any time before the Board of Inquiry or Environment Court makes its decision, or after the decision is made provided the primary application was granted or confirmed.

Decision-making in relation to designations and outline plans

As expected, the Bill removes the ability of a requiring authority to make decisions on notices of requirement, with the local authority having decision making power (clauses 110 and 111). 

The reason for this amendment was clarified:

"For requiring authorities to have the power to decide their own applications seems to run counter to the principles of natural justice. I consider there is strong public outcry on this current provision and it should be rectified. I also consider it to be a hangover of the 1980's where public works were undertaken by public bodies. This is no longer the case.

I propose to amend the Act so that decisions on notices of requirements are made by the relevant territorial authority. This will bring the decision-making process for designations in line with other processes in the Act, increase the timeliness of decision-making (by removing a step in the process). It will improve confidence in the independence and rigour of decision-making." (Minister for the Environment's Cabinet paper)

The concerns expressed in the Cabinet paper, while valid, are overstated. However, as drafted, the proposed amendments do not bring the proposed territorial authority decision-making power into line with other processes for designations in the RMA - there is no requirement for a territorial authority to provide a draft decision (or comment on conditions). 

The RMA affords an opportunity to comment on a draft decision of a Board of Inquiry. The Environment Court also often delivers interim decisions, which can allow the opportunity for conditions to be finalised. This additional step, rather than complicating matters, enables the requiring authority to comment on the workability of, or necessity for, conditions. 

The amendment also has the potential to increase costs for Council involvement in Environment Court appeals. In the event of an appeal by the requiring authority, or a submitter, a Council would need to defend its decision. Currently, unless a Council is the appellant, it could play a limited role (often of merely assisting the Court). 

Clause 113 of the Bill makes what appear to be consequential amendments to section 174 of the RMA - in relation to the ability to lodge appeals once notice has been given of the Council's decision. However, in doing so, there is no specific requirement for the requiring authority to be served with any appeals. 

Unexpectedly, the Bill also removes requiring authorities' ability to make decisions on outline plans. Clause 116 would amend section 176A so that territorial authorities can require (rather than request) changes to the outline plan. If a requiring authority does not agree it has the opportunity to appeal to the Environment Court.

No reasons are given for this amendment in the various cabinet papers, or the Regulatory Impact Statement. To date, the outline plan process has resulted in few appeals to the Environment Court. The process could be said to be working. 

If a local authority has decision-making power for a designation, we question why they also need it for an outline plan. A modern designation should contain detailed conditions that restrict the type of activities that can occur, while an outline plan contains further detail of those activities. 

As with the proposed amendments to the designation powers, a local authority would also need to defend its decision in the event of an appeal. Increased costs for the local authority could result. 

Notification of notices of requirement

The Bill allows for non-notification of notices of requirement (clause 109, amending section 169). 

However, notices of requirement that are "called-in" would remain publicly notified (sections 144 and 145 of the RMA are not amended by the Bill). There is however the ability to process related applications on a non-notified basis (clause 93: new section 141AAHI(1)(b)). 

Public notice via the internet / email service

The Bill proposes amendments to allow submissions to be made, and documents served by email. These amendments are sensible and have the potential to both lower costs and streamline processes.

However, there is an element of uncertainty in the Bill about whether lodgement of documents (rather than service) could occur by email.

It is also proposed to amend the definition of "public notice" to allow public notice to occur via the internet where a local authority "also publishes a notice on an Internet site to which the public have free access". The proposed amendment is vague. There is the potential for Councils to use any internet site, rather than a Council's official website. This uncertainty should be rectified. 

Boards of Inquiry having the ability to double time

The Bill corrects a gap in the RMA by giving the Minister the ability to extend time limits where he or she has intervened (clause 26). Currently, the Minister calls for submissions on projects that are "called-in", but has no ability to double the timeframe for receiving those submissions. 

Submissions

Submissions are due to the Local Government and Environment Select Committee by 3 April 2009.