Has Santa come early? A stocking full of RMA amendments introduced to Parliament

On 9 December 2024, the Resource Management (Consenting and Other System Changes) Amendment Bill (the Bill) was introduced to Parliament under urgency and is currently awaiting its first reading. The changes introduced by the Bill are significant and wide-ranging, with a lot to digest pre-Christmas.

The Bill fulfils promises made by the Government in August this year to introduce a second amendment bill to the Resource Management Act 1991 (RMA) by the end of the year. The Bill was introduced to progress Government priorities, including making it easier to consent new infrastructure (particularly renewable energy) support housing growth and simplify the planning system.

This article will address the key changes, including to:

• Medium density residential standards (MDRS). The Bill fulfils the promise of providing the ability to 'opt out' of MDRS and provides for a process to enable the opt out but foreshadowing a future 'revised NPS-UD', and the obligations to give effect to it.
• Compliance and enforcement. The Bill captures some of the amendments which formed part of the NBEA, including increased penalties, the ability to revoke consents and removing the ability to obtain insurance.
• Consenting. The Bill provides some process improvements, together with some further support for renewable and infrastructure consenting.
• Other areas, including the indicated amendments to section 70 to respond to recent caselaw, and a 'bulking up' of provisions responding to natural hazards.

 

Medium density residential standards (MDRS)

MDRS optional

Councils have decisions to make on medium density residential standards (MDRS) within a year after the commencement of the relevant section of the Bill. Councils that have incorporated MDRS are required to decide whether to retain, alter, or remove MDRS from the plan. If the council decides to alter or remove MDRS, this must be done using the streamlined planning process (subject to some tweaks). If the decision is to retain MDRS, there is still a possible process to remove them again at a later date, via resolution and notification to the Minister.

If the council has not yet incorporated MDRS, it must decide whether to progress its Intensification Planning Instrument (IPI) or request that the Minister approve the withdrawal of its IPI. The Minister can only approve the request to withdraw if the Minister is satisfied that the council has given effect to the policies of the current National Policy Statement on Urban Development (NPS-UD) in relation to building heights and densities within city centre zones, metropolitan centre zones and within walkable catchments.

Planning framework

In terms of the planning framework, the key change is that section 77G will be updated so that a 'relevant residential zone' now 'may' have MDRS incorporated, rather than 'must' incorporate MDRS. However, where a council has not made its IPI operative by commencement of this Bill, the former version of section 77G continues to apply until either the IPI becomes operative or the IPI is withdrawn. For private plan changes that have been accepted or adopted prior to the commencement of the Bill, former section 77G continues to apply until the plan change is made operative.

The Bill foreshadows a revised NPS-UD, together with providing the Minister with powers to ensure that the revised NPS-UD is given effect. If MDRS is going to be altered or removed, then councils will be required to give effect to the revised NPS-UD. Additionally, if councils are in 'non-compliance' with a national policy statement, such as the revised NPS-UD, the Minister can direct the council to prepare a plan change to address that non-compliance, using the streamlined planning process.

Streamlined planning process

The streamlined planning process is already provided for in the RMA, although the Bill makes some amendments, including in relation to:

• A new type of planning instrument, a 'housing planning instrument', which is an instrument required as part of modifying plans to reject or modify MDRS, or withdraw an IPI, and a 'listed planning instrument', which is either a housing planning instrument, or another plan change that is required by direction of the Minister to address a non-compliance with an NPS.
• Establishment of the Panel, which cannot include an independent commissioner who is an elected member of the council.
• Decision making, where the Panel must have particular regard to any Minister's statement of expectation.
• Process, requiring that the Panel makes a recommendation, which the council can accept or reject. If the council rejects the recommendation, it must decide on an alternative solution. There are rights of appeal to the Environment Court on a rejected recommendation.

 

Compliance and enforcement

There are significant changes proposed in the compliance and enforcement space! The Bill amends the current RMA compliance regime, largely following in the footsteps of the Natural and Built Environment Act 2023 (which was repealed at the end of 2023).

Of note, significantly higher fines have been introduced. Clause 65 of the Bill amends section 339 of the RMA, increasing the maximum fine for a natural person from NZD300,000 to NZD1,000,000 and increasing the fine for a non-natural person from NZD600,000 to NZD10,000,000. However, the maximum term of imprisonment for a natural person has decreased from two years to 18 months.

In addition, the Bill makes it illegal to enter into an insurance contract that indemnifies liability to pay a fine or infringement under the Bill. Any existing contract will have no effect, and no court or tribunal can grant relief in respect of the policy or contract. It will be an offence to contravene this clause, with individuals liable for a fine up to NZD50,000 and any other person liable for a fine not exceeding NZD250,000.

The Bill aims to simplify the issuing of directive abatement notices. Clause 60 amends the scope of an abatement notice, providing broader enforcement power and flexibility by allowing an abatement notice to ensure compliance or to avoid, remedy or mitigate adverse effects on the environment. This explicitly includes national environmental standards.

The Bill also proposes changes that would enable the consent authority to take account of previous abatement notices, enforcement orders, infringement notices or convictions under the RMA received by the applicant. It also allows authority to decline an application for consent if there is a record of ongoing, significant, or repeated non-compliance with the RMA that has been or is subject to an enforcement order or conviction.

A new provision also allows a local authority or EPA to apply to the Environment Court or District Court for an enforcement order revoking or suspending a resource consent, in whole or in part, where it is satisfied there has been ongoing, significant, or repeated non-compliance. The local authority or EPA must demonstrate that on the balance of probabilities the revocation or suspension of the consent is in the best interests of the public and will not result in any adverse effects on the environment.

 

Consenting

There have been several changes proposed to how consent applications are processed. In summary, the key process-related changes are:

• The information to be provided with an application must be proportional to the nature and significance of the activity. This reflects the language already in Schedule 4.
• The consent authority now has more options where an information request is not complied with. The consent authority can, if an information request issued under section 92 is not complied with, including through the failure to provide the requested information, or failure to agree to the commissioning of a report, it now determine the application is incomplete and return it to the applicant.
• Consent authorities must not hold a hearing if they consider they have sufficient information to decide the application. The obligation to hold a hearing where a hearing is requested by the applicant, or a submitter is to be removed. There are proposed changes for cases where the hearing is not held, including a requirement to circulate material to the applicant and submitters (refer to new section 103BA).
• A new process is introduced for the review of draft conditions of consent by an applicant along with the ability for the consent authority to review conditions of consent if it considers that the consent holder has contravened a condition of the consent.

There are also some key changes for renewable energy:

• A one-year maximum consent processing period for specified energy or wood processing activities. New definitions for these terms are proposed with "specified energy" activities relating to the establishment, operation or maintenance of an activity that produces energy from solar, wind, geothermal, or biomass sources, or the transmission and distribution of electricity through the electricity network.
• A new section 123B is proposed, providing a 35-year default duration for renewable energy or long-lived infrastructure activity (which is defined to include gas pipelines, electricity generation, transmission and distribution facilities, telecommunications facilities, transport and cargo infrastructure), with a new default lapse period of 10 years for renewable energy activities included in section 125.

The changes introduced by this Bill will only apply to resource consent applications lodged after the commencement of the Bill. However, the new lapse periods for consents for renewable energy activities and rules relating to the review of resource consents by consent authorities apply to consents granted on or after commencement.

 

Other areas of interest

Rules about discharges

The Bill also proposes an amendment to section 70 of the RMA, which relates to when a regional council can include a rule in their regional plan that permits a discharge. Currently, section 70 operates to prevent a regional council from creating a rule that permits a discharge into water, or onto land in circumstances where it may result in entering water, and that results in (among other things) significant adverse effects on aquatic life after reasonable mixing.

The Bill proposes to relax this slightly by allowing a rule that permits a discharge with significant adverse effects on aquatic life where:

1. the council is satisfied there are already significant adverse effects on aquatic life in the receiving waters;
2. the rule includes standards for the permitted activity; and
3. the council is satisfied that those standards will contribute to a reduction in the significant adverse effects on aquatic life over a period of time specified in the rule.

This carve out reflects the amendment to section 107 made by the Resource Management (Freshwater and Other Matters) Amendment Act 2024, which relaxed the conditions under which a resource consent can be granted for a discharge in similar circumstances. The changes to sections 70 and 107 reflect a legislative response to recent case law which upheld the restrictiveness of those sections.

Natural hazards and emergencies

The Bill introduces some much-needed changes to better prepare the planning and regulatory system for natural hazards and other emergencies. The Bill makes the following changes:

• Rules relating to natural hazards in proposed plans have immediate effect.
• A new ability to refuse land use consent where the activity for which consent is sought will create a new risk from natural hazards, increase an existing risk to a significant risk, or increase a significant risk. Natural hazard protection is also enhanced through proposed changes that give immediate legal effect to proposed rules on natural hazards.
• A provision allowing the Governor-General to make emergency response regulations for the purpose of responding to a natural hazard event or other emergency or enabling recovery efforts in the affected area.

Other key changes

Some of the other key changes introduced by the Bill include:

• Allowing local authorities to apply to the Minister to use the streamlined planning process for listing and delisting heritage buildings and structures in a plan.
• In relation to notices of requirement, a requiring authority that has an interest in the land is now only required to describe possible alternative locations or methods for undertaking the activity, rather than give adequate consideration to alternatives, if the work is likely to have significant adverse effects on the environment.
• Further definitions and restrictions on rules that control fishing for fish, aquatic life or seaweed.