This article is the fourth in our series on RMA reform, and follows on from our earlier articles on strategic integration of resource management, national direction and allocation of freshwater.
The Resource Management Review Panel has recommended a number of changes to the resource consent process currently provided under the RMA. These changes follow on from the Panel's recommendations regarding the way activities are managed in our planning documents, which are intended to reduce the number of consents by delivering clearer, more directive plans. Under this new system, permitted and prohibited activities would be more common and, where consent is needed, activities would be more clearly defined as controlled or restricted discretionary activities, with fewer full discretionary consents required.
For the majority of New Zealanders, the consent process is the primary vehicle through which they interact with the resource management system. Any changes to the way that resource consents are applied for, processed and decided upon will therefore have a significant impact on much of the day-to-day use of the new legislation that is proposed to replace the RMA. In this article, we consider the Review Panel's recommendations in relation to resource consent processes and provide our insights into how these changes may work in practice.
Consenting under the RMA
Resource consents are perhaps the most widely recognised and utilised tool under the RMA, with over 35,000 consents granted across New Zealand in 2018/2019.1 The resource consent process is used by landowners, developers and infrastructure operators to enable them to undertake activities that would otherwise contravene the RMA or relevant plan(s), subject to any conditions imposed on their consent. The length and complexity of this process is determined by the type and number of consents involved, the information required by the consent authority, and the extent of public participation.
As highlighted by the Panel, the current resource consent process is widely perceived as being complex, costly, and slow. The Panel identifies notification and requests for further information as the most common reasons for lengthier processing times and higher costs. Despite the potential for notification to result in a longer and more expensive process, the Panel emphasises that effective notification is critical to ensuring that the consent process gives effect to natural justice principles and provides for better-informed decisions.
The Panel considers the need to balance efficiency with access to justice to be one of the central issues in providing an effective process for resource consents. The RMA's notification regime has been reformed several times over the last 20 years, variously shifting this balance back and forth between greater public participation and the streamlining of the consenting process. The Panel found that the RMA has failed to strike an appropriate balance between these competing considerations.
In addition to matters relating to process and inefficiency, the Panel also found a number of issues with the way in which resource consent decisions are made under the RMA. In particular, the Panel considers that a focus on permitted uses (ie existing use rights or permitted baseline) has allowed activities to establish or continue that, over time, have accumulated to cause adverse environmental effects. Poor drafting, monitoring and enforcement of consent conditions have also contributed to the inefficacy of the RMA's consent process in addressing these cumulative effects.
The Panel's recommendations – fewer consents, more effective participation
While identifying a number of issues with the current resource consent process, the Panel recommends that many of the core elements be retained under the new Natural and Built Environments Act. This includes retaining the existing statutory timeframes and information requirements, with some refinements to ensure these requirements are proportionate to the issues raised by a particular application. The Panel has also recommended maintaining the types of resource consents (land use and subdivision consents, and water, coastal and discharge permits) currently included in the RMA.
However, the Panel's report also includes a suite of proposed changes at each stage of the resource consent process. The Panel's key recommendations include:
- Non-complying activities should be removed. In the Panel's view, the 104D "gateway tests" have led to unhelpful debate over what constitutes a "minor" adverse effect, when the focus should instead be on whether an application contributes to the positive outcomes contemplates by the relevant plan(s).
- For controlled activities, the presumption would be non-notification unless special circumstances exist. Restricted discretionary activities could be notified or not, with plans specifying whether this is the case and, if so, what type of notification would be required. All discretionary activities would be fully notified.
- Limited notification should only occur where affected parties can be identified in advance. Plans would then include provisions for each restricted discretionary activity specifying the categories of persons that may potentially be affected by the relevant application. If it is not possible to identify affected parties in advance, applications should be publicly notified.
- Assessment of resource consents should focus less on assessing potential effects and more on contribution to the outcomes contemplated by the relevant plan(s). The requirement for assessments to be "subject to Part 2" would be removed, with environmental limits and binding targets introduced to manage the potential for cumulative effects.
The Panel considers that, overall, its recommendations will mean that fewer consents are required, the notification process is faster and more effective in facilitating public participation, and council processes are more appropriately tailored to the nature, scale and complexity of an application.
Will the Panel's proposals achieve the right balance?
Many of the Panel's recommendations will provide for improved procedural efficiency as well as greater clarity around who should be notified. However, as history has shown, achieving an appropriate balance between efficiency and public participation is no easy task.
Including more specific and directive notification provisions in plans will reduce the need for debate and litigation at the resource consent stage by providing greater clarity around whether consent is required, and what type, and facilitating more efficient decision-making. However, such an approach will not remove the potential for such debate. Instead, questions relating to issues such as limited notification and affected parties will simply be rerouted to another part of the resource management system – the plan-making stage. While this is consistent with the intent of the Panel's recommendations to an extent, decisions relating to who is "affected" (and, therefore, who is accorded greater ability to participate in any future consent processes for particular activities) will become highly contentious and add further time and difficulty to the development of combined plans.
It is also unclear from the Panel's report how the determination of who is potentially affected by different activities will actually be made when combined plans are being prepared. The Panel recommends abandoning the current focus on whether adverse effects will be more than minor, but does not suggest an alternative method or threshold. Without clear guidance as to who may be considered affected and why, this is likely to add to the complexity of developing these provisions.
In our view, it is unrealistic to predetermine all of the parties that may be affected by an application at the plan-making stage. Landowners or developers invariably seek to use land in ways that were not contemplated at the time the relevant plan(s) are developed. The Panel proposes to have applications default to full public notification where potentially affected persons cannot be identified in advance (such that they cannot be specified in the relevant plan(s)). While this will ensure that any potentially affected parties can participate in the consent process for these types of applications, such an approach will also result in more extensive, time-consuming and costly processes for many applications.
In our experience, councils are also often conservative in making rules precluding notification in their plans. Given the Panel's recommended linkages between activity status and notification, it is possible that this conservatism could mean that plans require notification of applications for restricted discretionary activities to a greater degree than that envisaged by the Panel. Were that the case, the notification provisions of new combined plans will not reduce the extent of notification in the way sought in the Panel's report.
Even if plans can successfully predetermine and provide direction on the types of activities expected in a particular district or region, and which parties may potentially be affected by those activities, this approach risks losing one of the key benefits of the current resource consent process – flexibility. We agree that, for the majority of New Zealanders, more directive plans and fewer consenting requirements will bring about a cheaper, faster consenting process. However, plans that are overly directive and focused on a fixed set of predetermined outcomes could make it difficult to obtain consent for large-scale infrastructure or urban development projects that are not specifically contemplated when plans are being prepared.
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.