This week the Government released its second Amendment Bill this year aimed at providing "quick fixes" to the RMA while its replacement is being progressed. The first Amendment Act came into force on 25 October 2024 and included amendments to RMA provisions on freshwater management, intensive winter grazing, and significant natural areas. Parliament previously indicated the second Bill would include, among other matters, flexibility for Councils to opt out of the medium density residential standards ("MDRS") and longer durations for port consents. It does this and much more.
The proposed amendments contained in the Bill are wide-ranging and cover five main themes:
- infrastructure and energy,
- housing growth,
- farming and the primary sector,
- natural hazards and emergencies, and
- system improvements.
We address these key themes briefly below.
Overall, the Bill introduces promising amendments for enabling renewable energy infrastructure in particular, as well as resolving coastal occupation uncertainty for ports and concerns around permitted activity rules relating to discharges. The updates to the compliance, monitoring and enforcement provisions undoubtedly strengthen this area of the RMA. The proposed amendments to the consent processes show intent but in practice may not shift the dial.
The Bill will have its first reading next week and is expected to be enacted in mid-2025.
-
A helping hand for infrastructure and energy
Renewable energy is a big winner under the Bill with amendments to the RMA to require consent authorities to process and decide applications for renewable energy projects within one year and prohibition on consent authorities extending processing timeframes in relation to these applications. The default duration for consents for renewable energy infrastructure is set at 35 years with an increase in default lapse dates from 5 to 10 years.
The same 35-year default duration applies to "long-lived infrastructure". The definition in the Bill includes gas pipelines, telecommunications networks, electricity facilities, transport structures, and cargo facilities, but interestingly not water supply or wastewater infrastructure.
The signalled extension to the duration of the Port occupation consents is contained in the Bill with the duration of each permit extended by 20 years to 30 September 2046. The extension is automatic, but the Bill also requires the relevant Council to undertake a review of the permit to identify any adverse environmental effects of the activity authorised by the permit and whether conditions are needed to mitigate those effects.
-
An end to the MDRS?
As expected, the Government has made the MDRS voluntary but requires a council electing to remove or alter the MDRS to implement a plan change using the streamlined planning process (which is also amended under the Bill to among other changes, provides for the Council instead of the Minister to be the final decision-maker). For councils who haven't yet implemented the MDRS (Auckland), Ministerial approval will be required to withdraw part or all the intensification planning instrument, with the Council required to demonstrate it has given effect to certain policies in the National Policy Statement for Urban Development as far as practicable. The Government is intending to amend the NPS-UD prior to these sections coming into force.
-
Clearing away primary sector red-tape
The Bill clarifies the interface between the RMA and the Fisheries Act 1996, to balance marine protection with fishing rights. It also amends certification and auditing of farm plans, ensures timely consent processing for wood processing facilities, and enables national direction to facilitate aquaculture improvements.
To address a big concern for the farming sector following recent cases, amendments have been made to the parameters around discharges in section 70. The Bill clarifies regional councils are able to include permitted activity rules in a regional plan for certain types of discharges that may allow significant adverse effects on aquatic life if the regional council is satisfied that there are already adverse effects of that kind in the receiving waters, and the rule includes standards for the permitted activity that will contribute to a reduction of those adverse effects over a period of time specified in the rule.
-
Natural hazards and emergency response
Under the Bill, rules in proposed plans which relate to natural hazards will have immediate legal effect. The Bill also clarifies and reinforces councils’ ability to decline land use consents or impose conditions when significant natural hazard risks are present.
The Government has also proposed provisions which empower the making of emergency response regulations to respond to natural hazard events and enable recovery efforts in the affected area. This in essence codifies the process that has been undertaken over the last decade in response to Christchurch, Kaikoura and Gabrielle.
-
System improvements
This catch-all category covers a number of changes to the consenting and designation process, as well as considerably strengthening the compliance, monitoring and enforcement teeth of the RMA.
Consent processes
The Bill aims to reduce the need for hearings by removing the requirement for a hearing to be held if a submitter or applicant wishes to be heard and replacing it with a directive that a hearing must not be held if the consent authority determines that it has sufficient information to decide the application. While the intent is there, in practice we expect consent authorities to consider that a hearing is needed where submitters have indicated a desire to be heard to satisfy the sufficient information requirement. Submitters will also still have appeal rights so even if a hearing is not held this will still remain a risk for applicants (with a hearing generally valuable for working through issues with submitters).
The sufficiency of information is subject to a two-fold approach, Councils are directed that a consent application may be accepted for processing even if it is not fully compliant with the information required under the Act, including an assessment of the activity’s effects on the environment. Secondly, criteria have been added that a consent authority must consider before it makes a request for further information, including whether the information it seeks is proportionate to the nature and significance of the proposal. While Councils would consider they already meet the criteria in issuing further information requests it will be useful for applicants to have expectations codified in discussions with Council officers.
Designations
The drafting of the amendments to the designation provisions is somewhat unwieldy in the Bill and we expect this will be ironed out as the Bill progresses. The intent appears to be that an alternatives assessment and the "reasonably necessary to meet objectives test" are only a relevant consideration for the territorial authority if the requiring authority does not have a sufficient interest in the land (currently the alternatives assessment is also required if it's likely the work will have a significant adverse effect on the environment regardless of the interest held in the land).
However, the amendments proposed to the contents of the notice of requirement in section 168 require a requiring authority to provide a description of possible alternative locations or methods, even if they do have a sufficient interest in the land. If the intent is to remove the requirement for an alternatives assessment if a requiring authority already has an interest in the land, this will be a benefit for requiring authorities moving forward. Requiring authorities also benefit from the same increase in lapse date to 10 years as renewable energy infrastructure.
Compliance, monitoring and enforcement
The penalties for offences under the RMA are proposed to be increased from $300,000 to $1,000,000 for natural persons, and from $600,000 to $10,000,000 for a company. Certain contracts of insurance against fines or infringement fees under the RMA are proposed to be made unlawful. Councils will now be able to charge administrative activities for a widened range of activities including monitoring of permitted activities and actions related to enforcement.
Prior non-compliances are now expressly a factor that can be taken into account by Councils when deciding a consent application with an application able to be declined on this basis. Councils also have the option of imposing conditions to mitigate a risk that the resource consent may not be complied with in light of previous non-compliance by the applicant. Additional powers for Councils include the ability to review conditions of consent and ultimately to make an application to the Environment Court to revoke a consent in the event of non-compliance by a consent holder.