News
New Resource Management Processes Beginning to Bite
First published in New Zealand WineGrower magazine, August/September 2010 (vol 13 issue 7).
The Resource Management Act was recently amended to provide for a number of process related matters, one of which was to enable applications to be directly referred to the Environment Court and to avoid what is known as first instance hearing. This came into force on the 1st of October 2009 and applies to any application made after that date.
In the first reported case involving direct referral the application was considered by the Environment Court on the 14th and 15th of June 2010, and a decision given on the last day of the hearing. It involved an application by Progressive Enterprises Limited to establish a new supermarket in Warkworth. The basis for the direct referral was not that the proposal was complex in terms of the relative objectives and policies of the District Plan, but rather the risk of trade competitors involvement and their intention to further delay Progressive's development plans. The advantage to the applicant in this particular case was that the Court's involvement which commenced on the 3rd of March 2010 enabled rigorous case management relating to the exchange of evidence and other pre hearing matters being determined which resulted in a June hearing.
Many years ago Judge Arnold Turner of the Planning Tribunal reminded the writer that you must be able to prosecute an appeal the day you lodge it. Regrettably over the years lodging an appeal (for the purposes of ensuring delay) has bought time in the range of up to 18 months or so. It is therefore somewhat ironic that this case involved a number of parties including competing supermarket interests!
Nonetheless it is a timely decision and signal to all involved in resource management consenting.
Another fast track processing initiative introduced to the Resource Management Act was the recently promulgated Resource Management (Discount on Administrative Charges) Regulations 2010. This is yet another part of the Government's initiative to make decision making processes under the Act more efficient by amending the original Act and introducing two sections requiring regulations to be introduced for discounting local authority administrative charges. These sections were introduced to address the concerns over delays in processing the consent applications by local authorities. The discounts only apply to resource consent applications which include land use consents, subdivisional consents, coastal permits, water permits and discharge permits.
The Regulations do not apply to the Environmental Protection Authority (EPA) as this is not a local authority, nor effectively to consents either called in directly to the Environment Court or the subject of a board of enquiry by the EPA and/or the Environment Court.
An applicant does not have to apply to a local authority to receive a discount, as the responsibility rests with the local authority to progress the application within the RMA timeframes which are as follows.
- Application process - if no hearing held is 20 working days after the date the application is first lodged, or if the application was notified, 20 days after the closing date for submissions on the application.
- Notification - local authority must decide within 10 working days after application was lodged whether or not to notify the application.
- Hearing – notice of decision 15 working days after hearing.
If after an application is lodged the circumstances change in such a way as to reduce these timeframes, the local authority can ignore the change in circumstances when determining in a number of days in which the application must be processed. The discounts are calculated by subtracting the relevant working days set out in the schedule of the Regulations for notified and non-notified applications from the total number of working days taken to process the consent application.
The discount will accrue a 1% per working day up to 50 working days on both notified and non-notified applications. There is therefore a 50% cap on the total discount that must be given by local authorities.
Given that most Councils recover all actual costs of processing, the discounts could be considerable.
The Ministry for the Environment has issued an implementation guidance manual to assist local authorities in the finer details of when and how they should apply the discounts. There are some other matters of details prescribed by the regulation before any reliance is made on this summary.
Notwithstanding this qualification, these provisions are a reality which should introduce a new focus into application processing.
It is somewhat ironic that they should be introduced at a time when the volume of applications is significantly affected by current economic conditions.
