Resource Legislation Amendment Act in Practice By Martin Williams, Barrister, Shakespeare Chambers James Gardner-Hopkins, Barrister, Woodward St Chambers Derek Nolan QC, Barrister, Bankside Chambers

Resource Legislation Amendment Act in Practice Introducing… Martin Williams, Barrister, Shakespeare Chambers

INTRODUCTION Most comprehensive (or controversial ?) reforms since 1991 RMA expanded from 380 to 680 pages Reform fatigue Still coherent?

OVERVIEW Part 1 Part 2 - amendments to Reserves Act Subpart 1 – amendments that came into force April 2017 Subpart 2 – amendments that come into force October 2017 Subpart 3 – amendments that come into force April 2022 Part 2 - amendments to Reserves Act Part 3 – amendments to Public Works Act Part 4 – amendments to Conservation Act Part 5 – amendments to EEZ Act

COMMENCEMENT AND TRANSITIONAL PROVISIONS Subpart 1 – In force now Section 6 and Section 18A (Procedural principles) New Council functions National directions National planning standards Iwi Participation Agreements Alternative plan procedures New section 85 powers Refinements to Environment Court powers Some new regulation making powers Subpart 2 – In force October 2017 New notification provisions New consenting procedures Other regulation making powers Subpart 3 – Commences April 2022 Removal of power to take financial contributions Transitional provisions preserve existing processes completed prior to amendments

AMENDMENTS TO PARTS 2 AND 3 New Section 6(h) “The management of significant risks from natural hazards” New procedural principles (Section 18A) Use timely, efficient, consistent and cost-effective processes Clear and concise policy statements and plans Promote collaboration between or among local authorities on common issues Enforceable? Link to National Planning Standards

NEW COUNCIL FUNCTIONS Ensuring sufficient development capacity in relation to housing and business land to meet expected demands District and Regional Councils Underpins NPS on Urban Development Capacity 2016 Removal of Regional Council functions regarding hazardous substances

NATIONAL DIRECTION New Section 45A - content of National Policy Statements Constraints, limits and directions on content of plans “Single” process for preparing national directions – NPS and NES Retains choice as to process to be followed, including Board of Inquiry route – now also for NES Establishes National Planning Standards

NATIONAL PLANNING STANDARDS Broad purposes Objective of national consistency Structure, format and content Significantly beyond 2013 proposals

SCOPE AND CONTENT OF NATIONAL PLANNING STANDARDS Must give effect to NPS May cover any matters as now set for content of NPS (s45A) May direct substantive content for all plans (objectives, policies, methods, rules) May also specify structure and form of policy statements and plans Planning instruments must give effect to National Planning Standard etc (s 67, s 75)

PREPARATION Minister to consider whether national consistency desirable on resource management issue Whether National Planning Standard should allow for local circumstances Prepare Section 32 Report Give public “adequate time and opportunity” to make submissions No Board of Inquiry route

TIMING ISSUES First set of National Planning Standards within two years Structure and form, definitions, ‘e-plans’ Local authority recognition Mandatory? No Schedule 1 process Discretionary? Use one of Schedule 1 processes

REGULATION MAKING POWERS In force now Exclusion of stock from waterbodies Removal of duplication with other legislation Does not apply to genetically modified crops From October 2017 Fast-track application provisions Regulations relating to notification of consent applications

Resource Legislation Amendment Act in Practice Introducing… James Gardner-Hopkins, Barrister, Woodward Street Chambers

James Gardner-Hopkins Planning: ‘Collaborative’ and ‘streamlined’ plan preparation processes Key changes to the ‘standard’ planning track Iwi: Iwi participation arrangements/Mana Whakahono a Rohe Other new aspects of iwi participation

Collaborative planning process [New subpart 4 of Part 5] Initial collaborative steps: Optional, but must consider various matters first [cl 37] Once notice is given there is limited ability to ‘exit’ [cl 38] Criteria for appointment to the ‘collaborative group’ [cl 40], and setting the terms of reference [cl 41] The collaborative group determines its own procedure, although the Council must approve the commissioning of reports if at its costs [cl 43] The collaborative group reports to the Council, including as to what it has reached consensus on [cl 44]

Collaborative planning process Notification, submissions, and reporting: The Council then drafts the proposed “plan”, which must “give effect to” the consensus recommendations [cl 45], but can also address matters (within the terms of reference) where consensus was not reached Advice from iwi authorities must be sought on the draft [cl 46], and a s32 report must be produced [cl 47] Notification, submissions, and further submissions steps occur [cl 49-50] The Council reports to the collaborative group and iwi authorities on the decisions requested and how they relate to the consensus position of the collaborative group [cl 51]

Collaborative planning process Hearing by ‘review panel’, Council decisions on recommendations: A ‘review panel’ of 3-8 members, appointed under the criteria in [cl 65], holds a hearing: which may include mediation and cross-examination [cl 66 to 73] The collaborative group may appoint a member to assist the panel [cl 53] The panel reports to the Council and can recommend changes if [cl 54]: They are to ensure compliance with ‘legislative requirements’; or The collaborative group is given the chance to comment on the changes and the comment are included in the report If the Council rejects a recommendation, it must consider certain matters and develop an alternative provision (within scope) [cl 55]

Collaborative planning process Appeals – ‘rehearing’ [cl 60] and ‘on points of law’ [cl 61] Appeals by way of rehearing may be made where the Council’s decision: is inconsistent with the recommendation of the panel; was not based on a consensus position of the collaborative group (where it could not reach consensus, or where the collaborative group opposed a change recommended by the panel) in respect of a NoR or HPO, where that entity did not support the panel’s recommendation. Otherwise, any appeal is on points of law only. In both cases, appeals are to the Environment Court.

Collaborative planning process Rehearing procedure on appeal to the Environment Court - s277A The Court has full discretion to rehear all or any part of the evidence given to the Panel, but it must rehear evidence if the record is incomplete in a material way Leave of the Court is required for new evidence, which may be granted only it “was not able to be produced at the [earlier] hearing” This suggests a high hurdle, similar to the usual approach to adducing new evidence on points of law appeals.

Streamlined planning process [New subpart 5 of Part 5] A ‘bespoke’ approach directed by the Minister [cl 78], following request by the Council [cl 75] Criteria for request to be made by the Council [s 80C] Minimum process requirements are contained in [cl 78(4)(a)-(g)], includes a requirement not to be inconsistent with any iwi participation agreement. If a hearing is included in the process, cross examination may be allowed [cl 78(6)] At the end of the directed process, the Council must submit the proposed plan to the Minister for approval, referral back for reconsideration, or declining [cl 84-87] Other than where NORs or HPAs are incorporated, there is no right of appeal [cl 91]: judicial review is the only option outside the directed process

Changes to the ‘standard’ planning track: Limited notification Available where all persons directly affected are identified [cl 5A(2)], in which case: Those persons must be notified [cl 5A(3)] ; Iwi authorities and other agencies must be given copies [cl 5A(8)]; and Copies must be at maintained at the relevant central library [cl 5A(9)] Submissions may only be made by those notified or given copies [cl 8(1A)] The submission period can be closed early if submissions are made or notice give that submissions won’t be made by all those notified [cl 5A(7)] Rules do not have legal effect and are not treated as operative until after decisions on submissions are publicly notified.

Iwi participation agreements: Mana Whakahono a Rohe Purpose [s 58M]: to provide a mechanism for iwi authorities and local authorities to discuss, agree, and record ways in which tangata whenua may, through their iwi authorities, participate in resource management and decision-making processes under this Act; and to assist local authorities to comply with their statutory duties under this Act, including through the implementation of sections 6(e), 7(a), and 8.

Iwi participation agreements: Mana Whakahono a Rohe Can be initiated by an iwi authority [s 58O]; or by the council with either an iwi authority or a hapu [s 58P]. The first step is a hui, then negotiations, which must be concluded within 18 months if initiated by an iwi authority, or as otherwise agreed [s 58Q] An agreement must address [s 58R]: how iwi are to participate, including in plan processes (with ‘teeth’ in [cl 26A]); how the council is to consult; how relevant Treaty settlements are to be given effect to; how conflicts are to be managed, and disputes resolved. Once finalised, councils must update their internal policies and processes.

Iwi participation: Other new requirements Mandatory consultation with iwi authorities when preparing plans. Cl 4A requires in respect of a ‘standard’ plan process: Provision of a draft prior to notification Allowing adequate time and opportunity to provide feedback Have particular regard to that advice before notification A corresponding requirement applies to a collaborative planning process [cl 48], and at least one member of the collaborative group muct be appointed by iwi authorities, and one member of the review panel must have expertise in tikanga. A direction under a streamlined planning process must provide for consultation with iwi authorities [cl 77] A council must consult with iwi authorities about appointing a commissioner with expertise in tikanga, etc [s34A(1A)] Any s32 report must include advice received from iwi authorities [s32]

Iwi authorities – defined? Section 2: “the authority which represents an iwi and which is recognised by that iwi as having authority to do so” Does iwi includes hapu? “Mana whenua’ = ‘customary authority exercised by an iwi or hapu over an identified area’; ‘Tangata whenua’ = ‘in relation to a particular area … the iwi, or hapu, that holds mana whenua over that area’ Probably not in the context of iwi participation agreements, given that hapu are treated differently in [s 58O and 58P]

Resource Legislation Amendment Act in Practice Introducing… Derek Nolan QC, Barrister, Bankside Chambers

Derek Nolan QC Changes to consenting processes (notification, fast track applications, residential activity and subdivision) Changes to Environment Court powers and procedures

Subpart 2 of Part 1 of RLAA 2017 Amendments commence 18 October 2017 Definitions (ss 124-126 RLAA) New or replacement definitions in RMA (s2(1), s2AA(2), s2AB) s2AB ‘public notice’: publish on an Internet site to which public has free access all required information, and publish summary and details of Internet site in newspaper. Strike out whole or part of submission S132 inserts new s41D Council can strike out where supported only by evidence purporting to be independent expert evidence, but is not independent or does not have sufficient knowledge or skill.

Marginal or temporary non-compliance may be permitted activity – s135 RLAA introduces new s87BB RMA Is a permitted activity if - Would be permitted except for marginal or temporary non-compliance Any adverse environmental effects no different in character, intensity or scale than in absence of non-compliance, and Any adverse effects on a person are less than minor Council can give notice to this effect on own initiative, or after receiving an application Lapses 5 years after date of notice

Boundary activity s134 and s135 RLAA introduces s87AAB, s87AAD, s87BA RMA Boundary activity if - Requires a resource consent because of boundary rules, but no other district rules No infringed boundary is a public boundary Permitted if – Details provided to Council Owners of an allotment with infringed boundary give written approval If both provided, Council must give notice that permitted. Lapses 5 years after date of notice

Fast track applications s134 and s136 RLAA introduces s87AAB, s87AAC, s87AAD, and amends s88(2)(b) RMA Fast track if - Controlled activity under a district plan (not subdivision), or Is an activity prescribed or identified as a fast track activity in regulations under s360G (s173 RLAA) Application includes electronic address. Ceases to be fast track if notification, hearing held, or opt-out. s137 and s148 RLAA introduce s95 and s115(4) RMA Decide if a fast track application is to be notified within 10 working days after first lodged If non-notified so remains fast track, decision within 10 working days after first lodged

Public notification s137 RLAA introduces new s95A RMA Step 1 - Mandatory public notification: Applicant requests Required by s95C (further information not provided, won’t allow commission of report) Jointly with reserve exchange

Public notification continued … Step 2 – if not required by step 1, public notification is precluded where: Rule or NES precludes, or Application is for one or more (but no other) Controlled activity RDA or DA for subdivision or residential activity (defined in s95A (6)) RDA, DA or NC for boundary activity Or, is a prescribed activity in regulations under 360H (1)(a)(i) – see s173 RLAA But step 4 applies (step 3 does not apply)

Public notification continued … Step 3 – if not precluded by step 2 Public notification is required if – Required in a rule or NES, or Adverse effects that are more than minor If not precluded, step 4 applies. Step 4 – Special circumstances If warrants public notification If not, determine whether should be limited notification under s95B

Limited notification s137 RLAA introduces new s95B RMA Step 1 – certain persons must be notified Determine if any affected protected customary rights groups/customary marine title groups (and others), if so, notify. Step 2 - if not required by step 1, limited notification is precluded where: A rule or NES precludes, A controlled activity under a district plan (not subdivision), but no other activities A prescribed activity in regulations under s360H(1)(a)(ii) But step 4 applies (step 3 does not apply)

Limited notification continued….. Step 3 – if notification not precluded by step 2 Determine whether the following persons are affected and if so, notify – On a boundary activity, owner of allotment with infringed boundary In the case of a prescribed activity, a prescribed person in regulations under s360H(1)(b) Affected under s95E (“minor or more than minor”, disregard effects unrelated to controls reserved or to discretion restricted) Step 4 –special circumstances warranting limited notification.

Consideration of resource consent applications Addition to s104(1) matters to have regard to s143 RLAA introduces new s104(1)(ab) RMA “any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity” Subdivision consent may be refused s145 RLAA amends s106 RMA Current provisions relating to erosion, inundation, subsidence (etc) replaced by “significant risk from natural hazards” with matters to be assessed specified in new s104(1A)

Conditions s147 RLAA introduces new s108AA RMA Consent authority must not include a condition unless: Applicant agrees, or Is directly connected to An adverse effect, or An applicable rule or NES which is the reason, or one reason, why consent is required

Notices of Requirement ss157 – 162 RLAA amend ss168A, 169, 171, 189A, 190, 198AD RMA for NORs including heritage orders Amends notification provisions (now found in s149ZCB(1) to (4), 149ZCC(1)to(4), 149ZCE and 149ZCF Adds into the effects of allowing any requirement - Any positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result, as long as those measures are proposed or agreed to by the requiring authority.

Environment Court S149 RLAA amends s120 RMA No right of appeal where decision relates to one or more of the following, but no other activities: - boundary activity (unless NC) - subdivision (unless NC) - residential activity (unless NC) May appeal only if matter raised in the appellant’s submission s102 RLAA amends s268 and adds new s268 RMA Each party to Environment Court proceedings must participate in ADR, unless leave granted

Miscellaneous s165 Amends s352 RMA – must use electronic address if that person specified (unless a Court requires otherwise) s167 Adds new s357AB RMA to enable a Hearing Commissioner to determine some s357 objections s175 Repeals power in s108 to impose Financial Contributions (commences in 5 years)

Resource Legislation Amendment Act in Practice Questions…