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
IN INTRODUCTION • Most comprehensive (or controversial ?) reforms since 1991 • RMA expanded from 380 to 680 pages • Reform fatigue • Still coherent? 3
OVERVIEW ▪ Part 1 - 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 4
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 5
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 6
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 7
NATIONAL DIR IRECTION ▪ 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 8
NATIONAL PLANNING STANDARDS ▪ Broad purposes ▪ Objective of national consistency ▪ Structure, format and content ▪ Significantly beyond 2013 proposals 9
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) 10
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 11
TIM IMING IS 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 12
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 13
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 15
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] 16
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] 17
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] 18
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 . 19
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. 20
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 21
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 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. 22
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. 23
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