RMA: More Changes and New Court Fees

Whoever said ‘a change is as good as a rest’ obviously never had any interactions with the Resource Management Act 1991.  The much amended Act (on to its 17^th Amendment Act since its inception in 1991), has another round of changes coming into force on 18^th October. 

The Resource Legislation Amendment Act 2017 (RLAA) obtained Royal Assent on 18^th April this year – some of the changes came into force immediately, but a number of the substantive amendments (including to the resource consent process) come into force this month, including:

Subdivision: Changes to the way subdivision is dealt with.  This includes a change in the presumption around subdivision, which is now permitted unless it is restricted by a rule in a plan or a national environmental standard.  Changes have also been made to the subdivision consent processes to incorporate new requirements relating to natural hazards, and include an ability for Councils to refuse subdivision consent if there is a significant risk from natural hazards;

Speeding up processes for some resource consents and removing the need for some consents:  Three changes have been introduced, aimed at speeding up processes for more straightforward consents:

• There is a new “fast-track” (10 working day) process for controlled activities under a district plan (not subdivision).  Note that as an Applicant, you can ‘opt-out’ of this process at lodgement;
• New provisions around “boundary activities”, which means they might not need a resource consent where the neighbouring owner signs off on the infringement (this is the part that doesn’t meet the plan requirements).  Boundary activities are where the need for consent relates solely to an infringement relating to distance or dimensions such as yard setbacks and recession planes.  If you apply for the boundary activity exemption and meet all the requirements, Council has 10 working days to issue a permitted activity ‘notice’.  Once granted, there are no appeal or objection rights so it is quicker and cheaper for you, and more certain;
• Consent exemptions for some activities which involve marginal or temporary non-compliance with rules or regulations.  Again these activities may (in Council’s discretion) be issued with resource consent waivers, but the usual timeframes apply.  Once granted, there are no appeal or objection rights. 

Notification: Further changes have been made to the notification provisions for resource consents – including restrictions which mean the following activities cannot (in most cases [1]) be publicly notified:

• Controlled activities;
• Restricted discretionary or discretionary applications for a “residential activity” or subdivision of land;
• Restricted discretionary, discretionary or non-complying activities that are boundary activities.

Some changes have also been made to the ‘limited notification’ provisions, which mean that in a lot of cases controlled activities under the district plan (not subdivision) will now not be notified [2].  The notification provisions now follow a ‘step by step’ process and Councils must follow the stated order.

Appeal rights have been constrained: There are new limits on Environment Court appeal rights.  As mentioned above, there are no objection or appeal rights on deemed permitted boundary activities or deemed permitted marginal or temporary activities.  There are also no appeal rights on boundary activities, subdivision or ‘residential activities’ unless those activities are non-complying.  This is a significant change, as the only way these decisions can be challenged is through judicial review in the High Court if there has been an error in process.  This means that you need to be really aware of the potential impact of any proposed changes to the district plan and be involved in this early, because you will not get a chance later on when your neighbours are doing a non-notified non-appealable subdivision;

Objection process: Some further changes have been made to the objection process for consents, which means you can now ask for your objection on some Council decisions (such as changes or a review of consent conditions, or varying consent notice conditions) to be heard by an independent commissioner, but Councils might charge you for the associated costs. 

These changes may affect your development proposals or your right to be involved in certain resource consent applications. 

Changes to Environment Court Fees

Along with these changes to the RMA, amendments have been made to the forms required for certain processes and also the Environment Court fees. 

There are new forms for permitted ‘boundary activities’ (including application and written approval forms) and other forms have been amended to provide for the fast-track resource consents. 

Importantly, there are also amended and new Environment Court fees – including the introduction of scheduling fees and hearing fees, which need to be pre-paid to the Environment Court.  This is important because if you don’t pay the scheduling fee in time, the Court has the ability to cancel the hearing.  If the hearing time is different to that estimated, you can be required to make up the difference or you may be entitled to a refund. 

The Court has a discretion to waive fees in certain circumstances where it is in the interests of justice – if the Applicant cannot pay the fee or if it is a matter of public interest that would otherwise be unlikely to be brought before the Court.  

So how much are the new fees?

• Applications for most appeals $600 (up from $511.11)
• Commencing any other proceeding (except for applications for waiver or directions) $250
• Interlocutory applications $200
• Section 274 (interested party) notices $100 (previously free).  This doesn’t apply to s274 notices on ‘direct referral’ applications (i.e. applications which skip the Council hearing and go straight to Environment Court) which are still free.  
• Scheduling a hearing date (except for interlocutory applications) $350
• Hearing fees (for interlocutory applications for each half-day or part half-day after the second day, or any other application for each half-day or part half-day after the first half-day) $350

If you have any questions about the amendments and how they might affect you, please contact a member of our Resource Management and Local Government Team.