RMA Reform: the Resource Consent Process
By Iain McManus
The proposed Natural and Built Environment Act (“NBEA”) provides for three alternative consenting pathways:
- Fast track consenting for specified housing and infrastructure projects (similar to the fast-track process for specified projects under the Covid-19 Recovery (Fast-track Consenting) Act);
- Direct referral to the Environment Court (similar to the process under the Resource Management Act (“RMA”), for projects that will inevitably end up in the Environment Court); and
- A “standard” process for all other applications.
This article focuses on the standard process, as the vast majority of applications will go through that process.
The Standard Resource Consent Process
The standard resource consent process under the NBEA will continue to be managed by local authorities and will be broadly similar to the process under the RMA. However, there will be some key differences, including the following:
- The NBEA reduces the number of activity categories from six to four by eliminating the restricted discretionary and non-complying categories (leaving permitted, controlled, discretionary and prohibited activities).
- The NBEA places more emphasis on determining notification prior to the resource consent stage, stating that controlled activities will be non-notified while discretionary activities will be publicly notified unless there is a rule to the contrary in the National Planning Framework (“NPF”) or Natural and Built Environment Plan (“NBE plan”).
- Where the NPF or NBE plan requires an assessment of notification, new tests will apply. At this stage, it seems that these will be the same tests as proposed for use by regional planning committees to determine notification at the plan-making stage. However, these tests are loose and wholly unsuitable for the resource consent stage. Unless changed, this is likely to lead to considerable uncertainty and litigation.
- The NBEA places more weight on outcomes, targets and limits and less emphasis on avoiding, remedying or mitigating adverse effects. The efficacy of this will depend heavily on the definition of the outcomes, targets and limits – if they are loosely defined, uncertainty will reign and litigation result.
- The NBEA creates an “effects management framework” for decisions affecting “significant biodiversity areas”, “specified cultural heritage” and any other resource specified in the NPF, which will make it very difficult to undertake activities likely to have adverse effects on these resources.
- The NBEA explicitly prohibits consideration of effects on views from private properties and “land transport assets that are not stopping places” (which presumably means roads and railway lines unless there is a rest area, bus stop or train station there). Effects on views often lie at the heart of resource consent disputes so this will codify current case law and provide certainty re how such effects should be treated.
- The NBEA explicitly prohibits consideration of any adverse effects arising from the use of land by people on low incomes, with special housing needs or with disabilities. The term “special housing needs” is not defined in the Act so it will be interesting to see how widely the term is interpreted (e.g. will it include “half-way houses”, drug rehabilitation centres and homes for young offenders and, if so, is it fair that councils must ignore any adverse effects on neighbours arising from those activities?)
Will the NBEA lead to Faster and Cheaper Resource Consents?
The government says the new legislation will speed up and reduce the cost of the resource consent process but will it really?
NZ’s resource management system is littered with reforms that promised improvements and delivered the opposite (indeed, in my opinion, that has been the outcome of every RMA Amendment Act, not to mention the current government’s more recent forays into freshwater management and Medium Density Residential Standards, both which have created a bureaucratic nightmare for applicants). Additionally, there is nothing in the proposed NBEA that gives confidence that faster and cheaper consents will be the outcome and plenty to suggest that the opposite is more likely. In this article, I note some of the areas of risk.
Firstly, there is the broad observation that new legislation always creates uncertainty which always slows down decision-making processes. This will inevitably be the case here. The proposed NBEA is long and complicated and introduces a raft of new “system outcomes”, “decision-making principles” and novel and untested provisions. Inevitably, there will be problems with interpretation, unintended consequences and poor decision making for years until case law clarifies how the new legislation should be applied. There will then be a series of amendments as the government responds to issues identified and case law it does not like, which will then create new issues of interpretation and unintended consequences. Such was the story of the RMA and there is no reason to expect the new legislation to be any different. Of course, this is not at all conducive to expediting or reducing the cost of the resource consent process.
There are also significant time and cost risks inherent in the proposed move to a more outcomes-focused system. Councils have historically tended to define outcomes in broad and vague terms. This could create considerable uncertainty for participants in the resource consent process. Whether or to what extent a proposal delivers the outcomes sought in a plan is likely to be highly subjective and more contestable than the extent to which a proposal results in adverse effects. Under the NBEA, this has implications not only for whether consent should be granted but potentially also for the applicable activity category (as the legislation intends that this will depend on whether the activity achieves identified outcomes), which notification provisions apply (as this will depend on the activity category) and, in situations where notification is not pre-determined by the NPF or plan, whether notification is required (as public notification appears to be required where “there is sufficient uncertainty as to whether an activity could meet or contribute to outcomes”). Ironically, this move to a more outcomes-focused system could lead to more applications being notified and more people being considered adversely affected for notification purposes.
There are also significant time and cost risks in the legislative requirement to publicly notify all discretionary activities (unless the NPF or NBE plan says otherwise). It is difficult for councils to predict the full range of activities that people might wish to undertake in a zone at some point during the long life of a plan so councils have historically used the discretionary activity category to cover “all other activities” not specifically identified in the zone provisions. Under the new legislation, applications for all such activities will need to be publicly notified. Under the RMA, there is no such requirement (applications are assessed on their merits). This seems likely to lead to more applications being publicly notified than under the RMA.
Added to this, it is unclear what the tests for notification will be in situations where the decision on notification is not pre-determined in the NPF or plan. The NBEA seems to apply the same tests for notification at resource consent stage as proposed for the regional planning committee at the plan-making stage. However, these are novel and loose and unsuitable for use at the resource consent stage. For example, public notification is required if:
- There is significant uncertainty as to whether an activity will achieve the outcomes prescribed in the plan (see discussion re outcomes above); or
- There are clear risks or impacts that cannot be mitigated by the proposal (with no consideration of the significance of those risks or impacts); or
- There are relevant concerns from the community (seeming to make notification more likely if neighbours express concern, whatever the validity of those concerns); or
- The scale or significance of the activity warrants it (based on what?).
There are also significant time and cost risks inherent in the new requirements for decision makers in respect of the Treaty of Waitangi and mana whenua. In particular, the requirement to “give effect to” the principles of the Treaty of Waitangi (by comparison with the RMA requirement to “take into account” the principles of the Treaty) will put more onus on Council planners to proactively identify and address potential mana whenua issues while the requirement for decision makers to “recognise and provide for the responsibility and mana of each iwi and hapū to protect and sustain the health and well-being of te taiao in accordance with kawa, tikanga and matauranga in their area interest” is likely to make Council planners much more cautious in granting consent in the absence of overt support from mana whenua (which, in many cases, could mean numerous iwi and hapu). Under current processes, obtaining feedback from mana whenua can take months and thousands of dollars, particularly where there are numerous groups to consult, which is common. Mana whenua consultation seems likely to become even more important under the new legislation and that will have clear implications for the speed and cost of the resource consent process.
The government knows that it's great marketing to promise faster and cheaper resource consents. Everyone wants faster and cheaper resource consents. However, as the last 30 years of RMA reform has shown, delivering on that promise is a whole lot harder. Sadly, for all the spin, the NBEA seems highly unlikely to deliver on that promise and highly likely to do the opposite.
Please feel free to contact us if you would like to discuss the resource consent process for an upcoming project.