The RMA as introduced was founded on the notion of public participation. The concept was that it was fundamental for local authorities to have the information needed to properly assess the effects of proposals on the environment. On this basis, the public would be expected to be accepting of development proposals in their community, safe in the knowledge that potential issues would be thoroughly canvassed and the effects of development, avoided, remedied or mitigated.

Successive legislative amendments to the RMA have progressively eroded this approach. New plan making processes have evolved the planning system to become more focused on speed and efficiency (and more recently achieving development outcomes) over public participation. These processes may be fast, but as this article explores, they may also come at a significant increased cost if planning durability is compromised.

RMA Public Participatory Regime

Public participation has been regarded as a fundamental pre-requisite for achieving sustainable development since the World Commission on Environmental Development published the Brundtland Report. The primary objective of the Brundtland Report was to address sustainable development; however, it simultaneously created a platform for public participation. The Brundtland Report said:

“The law alone cannot enforce the common interest. It principally needs community knowledge and support, which entails greater public participation in the decisions that affect the environment. This is best secured by decentralizing the management of resources upon which local communities defend, and giving these communities an effective say over the use of these resources. It will also require promoting citizens’ initiatives, empowering people’s organizations, and strengthening local democracy.”

The RMA was founded on the principle that increased public involvement in resource management processes results in more informed decision making, and ultimately better environmental outcomes^.. In Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17 the Supreme Court stated that the objective of these participatory mechanisms was to recognise and protect the rights and interests of those affected and enhance the quality of decision making. This was the prevailing ethos for the first two decades of the RMA’s existence, with the proposition that increased public involvement in resource management processes results in more informed decision making, and ultimately better environmental outcomes, described as a founding principle of the RMA.

Successive Shifts in Plan Making Process

Under the original process, when a council initiates a plan change, it is required to notify the public. At the council level any person can make a submission on the proposed plan change. After initial submissions, there is a further submission stage where people can support or oppose other submissions. Hearings are required, allowing submitters to present their views and evidence for consideration. Decisions on the submissions require explanations as to whether they are accepted or rejected. Submitters retain full rights of appeal to the Environment Court with a hearing de novo on the merits. In addition, in relation to resource consents the original process was that notification of the application, which triggered a submission process, was presumed to have to occur.

In 2009 a fundamental shift occurred with the enactment of the Resource Management (Simplifying and Streamlining) Amendment Act 2009, which removed the statutory presumption of notification in resource consenting.

Since that time there have been conscious efforts aimed at curbing the significant amount of the time taken for plans to become operative, in particular the time spent resolving appeals to the Environment Court. Initially bespoke processes were to address urgent issues in particular regions, but the principles were later incorporated into the RMA generally. In terms of bespoke processes:

• The Auckland Unitary Plan hearing process, introduced by the Local Government (Auckland Transitional Provisions) Act 2010, was a streamlined process where an Independent Hearings Panel (IHP) heard submissions and made recommendations that Auckland Council then decided on. The rights of appeal to the Environment Court were limited to where Auckland Council departed from the IHP’s recommendations, otherwise appeals were limited to the High Court on points of law.
• A similar process was adopted following the Canterbury Earthquake Recovery Act 2011, where instead of the Christchurch City Council (CCC) hearing submissions itself, an IHP was appointed to conduct hearings and make decisions on the proposed replacement Christchurch District Plan. Decisions made by the IHP had a limited right of appeal to the High Court, restricted to points of law only.

Subsequently, the Resource Legislation Amendment Act 2017 introduced a new Streamlined Planning Process (SPP) under which councils can request, directly from the Minister, a process to address matters such as the implementation of national direction and/or a significant community need (or urgency). Once agreed, the Council must follow the SPP as set out in the Minister’s direction. There are no general appeal rights on decisions made under a SPP (with recourse to the High Court only through judicial review or via an appeal on a point of law).

The Shift from Local to Central Planning in Urban Environments

In 2020 with the promulgation of the National Policy Statement on Urban Development (NPS UD) central government became more directive about the specific outcomes sought in plan making in urban environments, particularly in our largest centres.

The key direction is found in Policy 3, requiring city centres to realise as much development capacity as possible, and for metropolitan centres and areas within a walkable catchment of city centres, metropolitan centres and existing and rapid transit, to enable at least six storey buildings. Subsequent legislative amendments have shifted from only directing a planned streamlining process to also directing specific planning outcomes:

• This was followed by the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021 (Housing Supply Amendment Act), a bi-partisan amendment, which amended the NPS-UD, introduced the highly prescriptive Medium Density Residential Standards (MDRS) enabling at least three, three storey dwellings across all other areas of urban environments (unless a council could point to a qualifying matter – such as a matter of national importance or for instance special character ).
• The prescriptive outcomes sought by Housing Supply Amendment Act were coupled with the introduction of another bespoke planning process – the Intensification Streamlined Planning Process (ISPP). The ISPP moved further away from full public participation towards a focus on efficiently achieving the centrally specified outcomes with limited or no public participation. It required councils to promulgate, notify, hear and decide intensification planning instruments (IPI) (special plan changes to implement the NPS-UD and MDRS) within specified and shortened time frames, with no ability to withdraw an IPI and no rights of appeal.

Enduring Environmental Outcomes?

In Auckland and Christchurch, the MDRS and IPI plan changes were not popular nor were they enduring.

Christchurch

In 2022, CCC initially voted not to notify an IPI. Following a Ministerial investigation under s 24 of the RMA, CCC accepted that it was legally obliged to notify an IPI (and did so in the form of Plan Change 14 (PC14)) but in doing so noted that it did not work well for the City. A key concern for CCC appeared to be the shift away from the RMA’s public participatory model that allowed communities to have meaningful input into the types of urban environments they wished to live in, as expressed in a letter from the CCC Mayor’s office in March 2023:

But above all else, the concern felt by most people – which is shared by our Council – is that the public have had very little say in the development and implementation of these rules. The Act requires councils to undertake specific actions. Even once the plan change is notified, there is little scope for a community to respond or amend if it is outside of the Act’s parameters …

Auckland

Auckland notified its IPI, Plan Change 78 (PC 78) as required in August 2022, but it was not without problems. PC 78 excluded a large area of central Auckland within which the Auckland Light Rail (ALR) corridor route was anticipated. The ALR corridor was intended to be upzoned via a variation to PC 78 following confirmation of the ALR route. PC 78’s use of a special character qualifying matter was controversial, in the context of the ongoing debate about maintaining the quality of urban environments as opposed to intensifying to allow a greater quantity of dwellings. There was also strong community opposition on the grounds of inadequate infrastructure, particularly in relation to stormwater. Following the Auckland Anniversary Weekend and Cyclone Gabrielle flooding in January and February 2023, Auckland Council recognised that a variation to PC 78 was required to address new flood hazard modelling. Ultimately, the ALR did not survive a change of Government, multiple extensions were required to the PC78 timeframes, and the problems of PC 78 became insurmountable.

The Next Round – Auckland’s PC120

National campaigned on the basis that it would make the MDRS “optional” and, following a change of Government, the Resource Management (Consenting and Other System Changes) Amendment Act 2025 (Amendment Act 2025) was enacted. The Amendment Act 2025 again directs specific planning outcomes which introduces alternative intensification provisions for Auckland and Christchurch:

• In Christchurch, CCC was allowed to withdraw the remaining parts of PC14 that proposed to implement the MDRS, without a replacement plan change, on the basis that CCC could demonstrate that its planning framework enables at least 30 years of housing growth.
• In Auckland, the Council was allowed to withdraw the remaining parts of PC 78, including the MDRS on the basis that it would promulgate an alternative plan change (Plan Change 120 (PC 120)) using an SPP that would provide at least as much housing capacity and enable fifteen storeys within walkable catchments of three urban city rail link stations and ten storeys around two suburban city rail link stations.

Submissions on PC 120 closed in December 2025 but media reports on community meetings suggest the proposed level of intensification will be controversial. The most controversial aspects are likely to be those mandated by the Amendment Act 2025, and these will be matters that Auckland Council cannot address through the submission and hearing process as they are prescribed by legislation.

The 20-month timeframe for PC 120 spans the next electoral cycle. It will be interesting to see whether exclusion of these matters from the full rigours of RMA public participation results in acceptance (which would in fact achieve the aims of faster and enduring planning processes) or elevates debate on these planning matters to a political level, which in the case of the MDRS and PC 78 and PC 14 was time consuming and fallible to change in central Government direction.

Early indications are that PC120 may be similarly fallible.  The Council received around 10,000 submission on PC120 and, although the summary of submissions has yet to be released at the time of writing, the collective tenor of those submissions can perhaps be gleaned from observing that just five working days after the close of submissions the media was already reporting on a soon to be announced central Government U-turn on the controversial housing targets.

Building Consensus in a Centrally Directed System?

While the RMA has been a political football in recent years, the above records that there have been many attempts to mould planning processes under the guise of the need for efficiency since 2009. At present, the RMA stands to be repealed and replaced, but, as the history of recent years has shown, change is constant.

NZPI’s recent paper, The Role of The Planner, identified the functions of planners as including being pragmatic arbiters of conflicts, and intermediaries between communities and the planning system who apply creative thinking and a collaborative approach to align community outcomes with the requirements of the planning system.  The Paper also envisaged that where the political and legislative context for planning changes relatively frequently through political cycles, there is also an opportunity to build consensus across political boundaries, both in central and local government, that endures regardless of the political ideologies of the day.

Disputes and disagreements about the environment do not go away simply because the ability for communities to influence planning outcomes is more constrained. Arguably there will be greater need to find other avenues for avoiding entrenched division and building consensus. Recent history has told us that communities always find a way to fight back either through the legal system or the ballot box.

If you need advice on any of the issues raised in this article, please contact Joanna Beresford | Environmental Partner | 021 114 1277    

Disclaimer. The information in this article is intended to provide a summary of the topic covered and is for general information only. It is provided without charge, is not comprehensive, and does not provide legal advice or other advice. Please seek independent advice before acting on any information in this article.

The Resource Management (Consenting and Other System Changes) Amendment Bill (the Bill) is the second phase of the coalition Government’s three phase major transformation of the resource management system.

In his December 2024 press release RMA Reform Minister Chris Bishop says the Bill is a precursor to full replacement of the RMA and will make important changes in the short-term to make it quicker and simpler to consent renewable energy, boost housing supply, and reduce red tape for the primary sector and that the Bill will help drive economic growth and increased productivity by making it easier to get things done in New Zealand.

The Bill makes amendments across five themes:

1. System Improvements.
2. Housing and Growth.
3. Infrastructure and Energy.
4. Farming and Primary Sector.
5. Natural Hazards and Emergencies.

This article briefly summaries the key amendments by each of these key themes.

System Improvements

The Bill targets simplicity and compliance by amending the consenting and enforcement processes. The key changes proposed include:

Consenting Process

Information relating to consent applications must be proportionate to the nature and significance of the activity. Before requesting further information, consent authorities must consider certain matters, including whether an assessment can be made without it and whether it is proportionate to the nature and significance of the activity.

If the applicant fails to respond as required, consent authorities may determine the application as incomplete and are no longer required to consider the application.

Hearings

Hearings must no longer be held if a consent authority determines it has sufficient information to decide on the application. This is an interesting change as it is often the hearing itself that identifies if further information is required to make a fully informed decision.

Non-Compliance

The Bill allows for an applicant’s history of non-compliance to be considered when deciding on a resource consent. This includes current and previous abatement notices, enforcement orders, infringement notices or convictions under the RMA. Consent conditions may be used to mitigate risks of non-compliance however, it is not clear what these conditions will look like.

Additionally, Local Authorities or the Environmental Protection Authority may apply to the Court to revoke or suspend a consent for issues of non-compliance. These are very broad powers and may result in consent holders more vigorously defending enforcement actions because of the potential implications for their existing consents.

Penalties

The Bill decreases the maximum term of imprisonment for a natural person from 2 years to 18 months, bringing it below the threshold for a Jury trial which requires a maximum penalty of 2 years or more. The maximum fine for a natural person is increased from $300,000 to $1,000,000. For a non-natural person the maximum fine is increased from $600,000 to $10,000,000.

Contracts of insurance for certain fines or infringement fees are proposed to be prohibited.

Housing and Growth

The Bill aims to provide flexibility and support growth by amending the processes for creating housing. The Medium Density Residential Standards (MDRS) will become optional for councils if they can demonstrate 30 years of housing growth capacity. When altering or removing the MDRS or withdrawing an Intensification Planning Instrument, councils must use the Streamlined Planning Process.

To ensure compliance with national direction, the Minister for the Environment is given new powers to direct councils and plan changes in accordance with national direction. The Bill also proposes a simplified planning process to list or delist heritage buildings and structures.

Infrastructure and Energy

There is a strong focus on renewable energy. Some of the key changes include changing the consent timeframes and durations for renewable energy projects. A consenting authority has one year from the date the application is lodged to process and decide a resource consent application for a “specified energy activity”. For the duration of consent for renewable energy projects, the Bill introduces a default of 35 years from the date of commencement unless one of the exceptions for a shorter period apply. The lapse period for renewable energy consents is doubled from 5 to 10 years. The same increase also applies to designations.

Farming and Primary Sector

The Bill focuses on certainty and growth. Key amendments aim to balance marine protection with fishing rights. The Bill introduces definitions and restrictions on rules that control fishing, aiming to clarify the relationship between the RMA and the Fisheries Act 1996. It ensures new rules undergo a pre-notification process with the Director General of the Ministry for Primary Industries, assesses impacts on fishing, reduces scope for submissions to limit the regulatory burden on fishers, and do not apply to Māori customary non-commercial fishing rights.

The Bill also amends Part 9A of the RMA to make farm plan certification and audit services more efficient and affordable by permitting industry organisations to provide these services.

Natural Hazards and Emergencies

The Bill clarifies that when significant natural hazard risks are present, a consent authority may refuse a land use consent or impose conditions. The assessment of a natural hazard risk includes factors like likelihood, material damage and adverse effects on the health or safety of people. Plan changes introducing new natural hazard rules have immediate legal effect.

If you need advice on any of the issues raised in this article, please contact Joanna Beresford | Environmental Partner | 021 114 1277    

Disclaimer. The information in this article is intended to provide a summary of the topic covered and is for general information only. It is provided without charge, is not comprehensive, and does not provide legal advice or other advice. Please seek independent advice before acting on any information in this article.

You can read the full article here.

If you require assistance understanding the implications of the NPS HPL on your business or property then please contact contact Joanna Beresford, Partner, Environmental Law, joanna@beresfordlaw.co.nz  +64 21 114 1277.

 Disclaimer. The information in this article is intended to provide a summary of the topic covered and is for general information only.  It is provided without charge, is not comprehensive, and does not provide legal advice or other advice.  Please seek independent advice before acting on any information in this article.

The Supreme Court recently released its decision in Cloud Ocean Water Limited v Aotearoa Water Action Incorporated [2023] NZSC 153 (Cloud Ocean Water) and the Court of Appeal has also considered the end use of water in Sustainable Otakiri Incorporated v Whakatāne District Council and Te Rūnanga O Ngāti Awa v Bay of Plenty Regional Council (Sustainable Otakiri).   In this article, Resource Management and Environmental Partner, Joanna Beresford, explains what the two cases are about.

The Cloud Ocean Water case

Cloud Ocean Water addresses issues arising when a resource consent to take and use groundwater is transferred to a new owner who wishes to use the allocated water for a different purpose from the use permitted under that consent.

In this case the consent, was originally granted to “take and use” water for a wool scouring business but was renewed to allow a water bottling operation.

The Canterbury Regional Council granted new “use” consents for commercial water bottling relying on rule 5.6 of the Regional Plan, which treats as discretionary all activities not otherwise classified in the Plan.

The issue for the Supreme Court was whether the Regional Plan allowed the “take and use” consent in question to be decoupled and a new use-only consent granted independently this decoupling under rule 5.6, or whether a completely new take and use consent was required (as set out in rule 5.128).

If take and use elements could be decoupled under rule 5.6, water permit holders could “bank” the take components of their permits and repurpose (through a new consent application) the use component.  This would enable applicants to avoid having to justify the volume of water to be deployed in the new use. If rule 5.128 apply, any new use for which a consent was required would also need a take component.

The Supreme Court unanimously dismissed the appeal.  The RMA did not require take and use to be considered conjointly in all cases.  Nor was take and use to be considered separately where the Plan does not so prescribe.

There was nothing in the Plan that suggested the drafters envisaged take and use consents would or should be divisible.  While rule 5.6 filled a gap where the Plan did not classify an activity, rule 5.128 of the Plan did classify the use of water in relation to groundwater in a context where it required it to be considered as a component of an aggregated “take and use” activity.

Williams J wrote separately, concurring with the result but for the reason that the policies and objectives of the National Policy Statement on Freshwater Management and the Canterbury Regional Policy Statement would be undermined by decoupling “take” and “use” elements.

The Sustainable Otakiri case

Sustainable Otakiri relates to issues around the proposed expansion of a water bottling plant in the Bay of Plenty. It raises the relevance of the “end use” effects of an activity (in this case the relevance of the use of plastic bottles) when considering a resource consent under the RMA.

In 2016, Creswell NZ Ltd entered into an agreement to buy a water extraction/bottling business, Otakiri Springs Ltd, and the land where it was located.  Creswell then sought various resource consents from the Regional and District Councils relating to water take and land use for the operation and expansion of the water bottling plant.

Environmental groups Sustainable Otakiri and Ngāti Awa appealed against the decisions.  The Environment Court, followed by the High Court upheld the consents.

High Court held that the “end use” of plastic water bottles should not be taken into account; the activity was a discretionary “rural processing activity” rather than a non-complying “industrial activity”; and the proposed operation was the expansion of an existing activity rather than a new activity.

The High Court also rejected arguments that the resource consents would negatively affect te mauri o te wai and the ability of Ngāti Awa to exercise kaitiakitanga (collectively, the negative tikanga effects).

The Court of Appeal granted leave to appeal on all issues, apart from that relating to negative tikanga effects. The Court of Appeal dismissed the appeal, upholding the High Court’s decision, except for the ruling that the proposal was simply the expansion of an existing activity (although this did not affect the final outcome).

Sustainable Otakiri and Ngāti Awa applied for leave to appeal against the decision of the Court of Appeal to the Supreme Court.  Ngāti Awa further applied for leave to appeal directly from the High Court decision on the negative tikanga effects.

At this point the position remains that “end use” of plastic water bottles should not be taken into account but the point will not be settled until the appeals are determined the Supreme Court.  The cases were heard together by the Supreme Court in late November 2023, with a decision expected this year.

If you need advice on any of the issues raised in this article, please contact Joanna Beresford | Environmental Partner | 021 114 1277    

Disclaimer. The information in this article is intended to provide a summary of the topic covered and is for general information only. It is provided without charge, is not comprehensive, and does not provide legal advice or other advice. Please seek independent advice before acting on any information in this article.

A full copy of the NPSIB can be found here

Background

The NPSIB has been six years in the making.  Consultation on the Proposed NPS IP took place in 2020 and on opportunity for feedback on an exposure draft of the NPSIB in 2022 garnered over 5,000 submissions.

Through the consultation processes, the move to impose a single method for identifying significant natural areas (SNAs) came under fire from landowners who feared it would mean losing control of private land, or facing restrictions on what they could do with it, particularly in relation to farming activities.

What does it do?

Key points to note about the NPSIB include:

• The objective of this NPSIB is to maintain indigenous biodiversity across Aotearoa New Zealand so that there is at least no overall loss in indigenous biodiversity after the commencement date.
• The NPSIB prioritises the mauri and intrinsic value of indigenous biodiversity and recognises people’s connections and relationships with indigenous biodiversity. It recognises tangata whenua as kaitiaki and people and communities, including landowners, as stewards of indigenous biodiversity.
• The NPSIB applies to indigenous biodiversity in the terrestrial environment throughout New Zealand. However, the NPSIB does not apply to the development, operation, maintenance or upgrade of renewable electricity generation assets and activities and electricity transmission network assets and activities. There are some exceptions creating a more permissive regime for specified infrastructure and existing plantation forestry.
• A precautionary approach to effects has been adopted and the NPSIB operates on an effects management hierarchy under which adverse effects are avoided where practicable, then minimised where practicable, then remedied where practicable. If more than minor adverse effects cannot be avoided, minimised or remedied then biodiversity offsetting, is provided where possible and if not possible biodiversity compensation is provided.  If compensation is not appropriate then the activity itself should be avoided.

Key policies include that:

• significant indigenous vegetation and significant habitats of indigenous fauna are identified as SNAs using a consistent approach set out in the NPS. However, the policy statement applies to councils rather than landowners, giving local authorities flexibility on how they manage adverse effects in SNAs.
• SNAs are protected by avoiding or managing adverse effects from new subdivision, use and development; and
• The importance of maintaining indigenous biodiversity outside SNAs is recognised and provided for.
• For the first time require the NPSIB requires all regional councils to prepare a strategy for biodiversity. Local authorities must have regard to the relevant regional biodiversity strategy when developing restoration objectives, policies, and methods for inclusion in regional policy statements and plans.
• Every territorial authority must undertake a district-wide assessment of the land in its district to identify areas of significant indigenous vegetation or significant habitat of indigenous fauna that qualify as SNAs. Territorial authorities are then required notify a plan or plan change to include as an SNA each area in its district that is identified as qualifying as an SNA.

Implementation

 The NPSIB places significant requirements on regional councils and territorial authorities for identifying and managing indigenous biodiversity.

Local authorities are required to give effect to the NPSIB as soon as practicable.  However, there are quite long lead times for some of the more substantial workstreams.  Changes to policy statements and plans must be notified within eight years, plan changes to give effect to the parts relating to identification of SNAs must be notified within five years and regional biodiversity strategies are to be completed within ten years.

An implementation plan has been issued alongside the exposure draft of the NPSIB to support councils in implementing the plan.  A copy of the Implementation Plan can be found here.

Biodiversity Credit System

The Government has also announced a parallel consultation on new ways to fund long-term conservation via a biodiversity credit system.  By purchasing credits, people and philanthropic organisations can finance and actively support ‘nature-positive’ actions on public and private land, including whenua Māori.

A discussion document for public consultation has been released asking how a biodiversity credit system could be set up and what role the Government should play in it.

New resource management system

The NPS-IB has been developed under RMA, which the Government intends to repeal and replace with the Natural and Built Environments Bill (NBA). National policy direction under the NBE will be by way of the National Planning Framework.  The NPSIB is expected to be transitioned into the proposed NPF developed under the NBA.

If you need advice on any of the issues raised in this article, please contact Joanna Beresford | Environmental Partner | 021 114 1277    

Disclaimer. The information in this article is intended to provide a summary of the topic covered and is for general information only. It is provided without charge, is not comprehensive, and does not provide legal advice or other advice. Please seek independent advice before acting on any information in this article.

The Environmental Protection Authority (EPA) also has enforcement powers under the RMA and may take enforcement action if a council does not, with or without council agreement.

What is an abatement notice?

An abatement notice is a formal notice that is served on a person by a council or the EPA under the RMA.  It requires the person served with the notice to stop or not commence any action that contravenes the RMA, or environmental and planning regulations, or the terms of a resource consent, or which is likely to have an adverse effect on the environment.

An abatement notice requires that action is taken to comply with the notice within the period of time specified in the notice.  Non-compliance with an abatement notice is an offense under Section 338(1)(c) of the RMA.

What is an enforcement order?

An enforcement order is an order made by the Environment Court to compel a person to comply with the provisions of the RMA, a rule in a plan, or the terms of a resource consent.  An enforcement order may be issued on terms that the Environment Court thinks fit.  It may have a wide scope and require a person to cease or undertake an activity, pay money, or reimburse others for their costs. Breach of an enforcement order is an offense under Section 338(1)(b) of the RMA.

What is a prosecution under the RMA and what are the potential penalties?

A prosecution is when a criminal charge is laid against a person or organisation (who is called the defendant) and is dealt with by a court.  Prosecutions under the RMA are at District Court level and heard by a judge with a specialist Environment Court warrant.   Most RMA offences are strict liability, meaning that the prosecutor (i.e. the Council or the EPA) does not need to prove that the defendant intended to commit the offence.

The potential penalties for offences under the RMA vary depending on the severity of the offence.  The RMA expressly provides for fines, enforcement orders, and imprisonment in some cases.  For individuals, the maximum penalty for offending is a $300,000 fine or a sentence of imprisonment of two years.

For companies the maximum penalty on conviction is a $600,000 fine.   However, the actual fine imposed in any given case be considerably lower than this. There are several ways in which fines are reduced.  For example, factors such as a defendant’s conduct, level of remorse, taking responsibility for remediation any environmental damage, may be taken into account as mitigating factors that reduce the level of a fine.

What should I do if the Council asks me to attend an interview?

If you have been asked to attend an interview with the Council for an RMA enforcement matter, it is important to understand the purpose of the interview. The interview may be conducted to investigate an alleged breach of the RMA or to gather information that is preliminary to enforcement action being taken.

What should I do if served with an abatement notice?

It is important to understand your obligations and options.  In many cases the best course of action will be comply with the abatement notice to the best of your ability within the required timeframe.   However, councils do make mistakes and in some cases it may be advisable to appeal an abatement notice and seek a stay, meaning that compliance will not be required until the appeal is resolved.

Because failure to comply with an abatement notice can result in prosecution and conviction for environmental offending, this is something that needs to be taken seriously.

What should I do if served with an application for an enforcement order?

It is again important to understand your obligations and your options.  The terms of the enforcement order may potentially be something that you could have input into.  It may be advisable to negotiate and agree to an enforcement order that you are in a position to comply with.  This may require you to instruct experts in environmental disciplines to support your position.

If you need advice on any of the issues raised in this article, please contact Joanna Beresford | Environmental Partner | 021 114 1277 or Geoff Beresford | Litigation and Insurance Partner | 0277 396 896   

Disclaimer. The information in this article is intended to provide a summary of the topic covered and is for general information only. It is provided without charge, is not comprehensive, and does not provide legal advice or other advice. Please seek independent advice before acting on any information in this article.

The government has announced that the RMA will be repealed.  Although visible progress is slow at present, the intention is that the RMA will be replaced by the end of the current Parliamentary term.   Two statues will then take the place of one, being the Natural and Built Environments Act and the Spatial Planning Act, along with the addition of a new Climate Adaption Act.

Although the timeframe is not yet clear, the new legislation is expected to be consulted on later this year.  The RMA governs the subdivision and development of land, where and how land can be used for residential, commercial, industrial or rural businesses, the use of our coastal marine area, whether manufacturing or industry can use water or discharge pollutants to land, air or water and how infrastructure providers can provide essential infrastructure such as electricity generation,  highways, water supply, wastewater treatment or stormwater management, schools, hospitals, courts, prisons.  What emerges from that process will therefore affect how many businesses can operate, and also how New Zealanders live, work, and play.  If you want to engage effectively in the upcoming process, then it is important to get ready now.

1.     Do your homework

If you want to get up to speed with the policy direction proposed by Central government, here is our pick of the top three documents to read (warning – bullet points one and two are lengthy):

• The “Randerson Report” – “New Directions for Resource Management in New Zealand is a comprehensive review of New Zealand’s resource management system”. This is the most comprehensive source of environmental policy.  It can be found here.
• The Select Committee Report on the exposure draft. It can be found here.
• The Ministry for the Environment’s “Our future resource management system”. This summary consultation document was used to consult with key stakeholders earlier in the year and can be found here.

2.     Understand the challenges and opportunities your business

 What happens at the national level can make a big difference to development projects.  For example,  development projects around the country have recently come unstuck due to national level wetland rules that have made certain types of developments affecting wetlands much harder (or impossible).  There is long-term strategic value in seeking to ensure that environmental legislation and high-level policy supports your future projects.

Many developers, resource users and infrastructure providers who regularly participate in resource management processes will already have a good sense of the environmental challenges faced by their operations.  However, if these are new issues for your business, then there is no time like the present for considering the long-term aspirations and directions for your business and how these might be constrained by the environmental management regime.

3.     Get your team together

For your business to make a compelling submission that persuades decision-makers you may require  expert technical advice (for example stormwater engineers, traffic engineers, air or water discharge experts, ecologists, urban designers, development economists or planners).

Many experts have already been seconded to help with policy and legislation formulation, reducing the pool available to assist private enterprises.  With intensification plan changes in major cities also scheduled to commence in August 2022, the last quarter of this year is likely to be a very busy time for experts.  So, get ahead of the queue and assemble your team early.

4.     Engage with industry representatives

The issues facing your business are most likely shared by others in your industry.  Some industry bodies will take on an advocacy role for their members through the upcoming Select Committee process.  Now is a good time to engage with industry representatives to ensure they have a good idea of the  challenges faced by your business and that they can effectively advocate for your industry.

Taking this step does not stop you from making your own submission, but it will help decision-makers  understand that issues are faced collectively across your industry.

5.     Plan for the Select Committee process

Parliament will likely come under pressure to pass the RMA replacement legislation before the end of this term.  Based on the legislative process enabling intensification (see here for more detail) the environmental reform process may well take place under urgency.

Our view is that, notwithstanding the high significance of the reforms, the submission period and the Select Committee process is likely to be truncated.  So, be prepared.  Make sure that you and your team are aware of this possibility and plan to have resourcing available, so you are not caught short later in the year.

 We recommend that you also keep in mind that unless you are identified as a key stakeholder (typically these are iwi, councils, Government departments or national level environmental organisations) you will only have five minutes to present your case before the Select Committee.  If you are not engaging a lawyer or another advocate to make those submissions on your behalf, then practice your elevator pitch.  You will want this to be as strong as possible on the key issues affecting your business.

If you require assistance understanding the implications of the upcoming environmental law reform on your business or property or need help preparing for the Select Committee process then please contact contact Joanna Beresford, Partner, Environmental Law, joanna@beresfordlaw.co.nz  +64 21 114 1277.

 Disclaimer. The information in this article is intended to provide a summary of the topic covered and is for general information only.  It is provided without charge, is not comprehensive, and does not provide legal advice or other advice.  Please seek independent advice before acting on any information in this article.