Further to our previous articles (on the framework, effects management and Māori involvement), this article discusses additional key changes arising from the proposed Natural and Built Environment (NBE) Bill.
Activity classes
The NBE Bill proposes to reduce the number of activity classes from six to four, with the removal of restricted discretionary and non-complying activities. The four proposed activity classes include permitted activities, controlled activities, discretionary activities and prohibited activities, but with different definitions of what some of those classifications entail. Notably consent authorities will now have a limited discretion to decline controlled activity consents.
In an attempt to avoid technical breaches of permitted activity standards resulting in the need for consent the Bill provides for a waiver mechanism to allow activities that infringe any permitted activity standard to proceed as if they were a permitted activity if:
- the infringement is marginal or temporary;
- the adverse effects of the activity are no different in character, intensity or scale than they would be in the absence of the marginal or temporary infringement; and
- any required written approvals have been obtained.
Permitted activities may also be subject to conditions or requirements such as monitoring the activity for compliance, certification by a qualified person or requiring an environmental contribution to be made.
Notification
The proposed changes to the notification framework include a more front end notification assessment in an attempt to increase certainty as to whether an activity is likely to be notified. This is to be achieved through the NPF or NBE plan specifying activities that require public or limited notification, identifying affected persons for the purposes of notification or persons from whom approval must be obtained in relation to a permitted activity. The NPF or NBE plans can also permit the deferral of notification decisions to consent authorities. When considering whether a person is affected for the purposes of notification consent authorities no longer need to consider the minor effects threshold currently provided for in the RMA but instead focus on whether notification will provide the consent authority with additional information.
There is a presumption that controlled activities will be non-notified and that discretionary activities will be publicly notified unless the NPF or a NBE plan states otherwise.
Perhaps the most significant change to the notification regime is that the NBE introduces the ability to challenge deferred notification decisions in the Environment Court where these previously could only be challenged on judicial review to the High Court. This may increase the frequency with which these decisions are challenged which could have implications for the efficiency and timeliness of the full consenting process.
Designations
While designations will continue to be the primary tool for securing land for public infrastructure the Bill introduces a two stage process that separates the securing of the land for infrastructure from the environmental management assessment. This is intended to enable requiring authorities to secure land for future infrastructure earlier and protect it from conflicting use without needing to provide the detailed information on how future effects will be managed which has become commonplace in RMA notice of requirement applications. Arguably, this change pulls the regime back to being more in line with what may have originally been intended for route protection purposes under the RMA.
Existing Use Rights
Another significant change proposed by the NBE Bill is the shift away from the RMA’s existing use right provisions. While the same basic principle applies, NBE plans may include rules that would no longer guarantee existing use rights in cases where the rule relates to natural hazard risk, climate change risk, or contaminated land risk.
Consent authorities will also have an expanded power to review consent conditions and even cancel land consents through a review process where there are significant adverse effects on the environment resulting from the exercise of the consent.
Contamination
The RMA does not include provisions that directly regulate contaminated land. The NBE codifies the polluter pays principle that those who produce pollution should bear the costs of managing that pollution. Under the NBE landowners will also have a greater responsibility to self-report contaminated land and the regional council will be required to maintain up to date records on the nature, extent, severity, management and remediation of contaminated land.
Freshwater
The reforms introduce some significant changes in relation to freshwater including by altering allocation processes so that water is allocated on the basis of merit rather than on a first come first served basis. A Freshwater Working Group is also proposed to be established to make recommendations on matters relating to freshwater allocation and Freshwater Farm Plans will become mandatory for farms meeting particular criteria.
Enforcement
The NBE introduces a stricter compliance, monitoring and enforcement framework that includes a prohibition against relying on insurance for covering fines and fees, an increase in financial penalties, and the ability for consenting authorities to consider the compliance history of an applicant when considering applications for new consents. Councils and the EPA will continue to carry out their monitoring and enforcement roles with expanded powers to recover costs associated with monitoring and non-compliance investigations. The Environment Court will also be able to order the revocation or suspension of a resource where there has been ongoing and severe non-compliance.
Overall the NBE Bill proposes to introduce a number of significant changes to existing resource management practice.
