Overview of the Resource Management Act 1991
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This is a presentation by Environmental Defence Society Lawyer Nicola de Wit given at an EDS community workshop held in Gisborne on 13 April 2013. It provides a description of the purpose and principles of the RMA, responsibilities of different management agencies, policies and plans and resource consenting.
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Overview of the Resource Management Act 1991
- 1. www.eds.org.nz1 Nicola de Wit, Lawyer, EDS Overview of the RMA Who decides and how decisions are made
- 2. Part 2 of the RMA www.eds.org.nz2 Purpose section 5 Matters of national importance section 6 Other matters section 7 Treaty of Waitangi section 8 Overriding purpose Recognise and provide for Have particular regard to Take into account
- 3. Purpose of RMA To promote ‘sustainable management’ of natural and physical resources Managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural wellbeing and for their health and safety while- (a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) Safeguarding the life-supporting capacity of air, water and ecosystems: and (c) Avoiding, remedying or mitigating any adverse effects on the environment www.eds.org.nz3
- 4. Section 6: Matters of national importance (a) Preservation of the natural character of the coastal environment, wetlands, lakes and rivers and their margins and protection from inappropriate subdivision, use and development (b) Protection of outstanding natural features and landscapes from inappropriate subdivision, use and development (c) Protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna (d) Maintenance and enhancement of public access to and along the coastal marine areas, lakes and rivers (e) Relationship of Māori and their cultural and traditions with their ancestral land, water, sites, wāhi tapu, and other taonga (f) Protection of historic heritage from inappropriate subdivision, use and development (g) Protection of customary activities www.eds.org.nz4
- 5. Section 7: Other matters (a) Kaitiakitanga (aa) Ethic of stewardship (b) The efficient use and development of natural and physical resources (ba) The efficiency of the end use of energy (c) The maintenance and enhancement of amenity values (d) Intrinsic values of ecosystems (f) Maintenance and enhancement of the quality of the environment (g) Any finite characteristics of natural and physical resources (h) The protection of the habitat of trout and salmon (i) The effects of climate change (j) The benefits to be derived from the use and development of renewable energy www.eds.org.nz5
- 6. Section 8 – Treaty of Waitangi All persons exercising functions and powers under the RMA are required to take into account the principles of the Treaty of Waitangi This includes duties to act reasonably and in good faith, to consult, and to actively protect Maori interests www.eds.org.nz6
- 7. Part 2 of the RMA www.eds.org.nz7 Purpose section 5 Matters of national importance section 6 Other matters section 7 Treaty of Waitangi section 8 Overriding purpose Recognise and provide for Have particular regard to Take into account
- 8. Policies and plans www.eds.org.nz8 National Policy Statements (incl NZCPS) Regional Policy Statements Regional Plans District Plans National Environmental Standards
- 9. National Policy Statements • Address matters of national significance • Contain objectives and polies • New Zealand Coastal Policy Statement is required • Other National Policy Statements are optional, we have three: • Electricity transmission • Renewable electricity • Freshwater management www.eds.org.nz9
- 10. National Environmental Standards • Set out minimum requirements to ensure consistency across the country • Technical, may include rules • Five National Environmental Standards: • Air Quality • Drinking Water • Telecommunications • Electricity Transmission • Soil Contamination www.eds.org.nz10
- 11. Policies and plans www.eds.org.nz11 National Policy Statements (incl NZCPS) Regional Policy Statements Regional Plans District Plans National Environmental Standards
- 12. Regional policy statements • Must be prepared for each region • Purpose is to provide: “an overview of the resource management issues of the region and polices and methods to achieve integrated management of the natural and physical resources of the whole region” • Can include maps • Cannot include rules • Many “second generation” RPSs are currently being prepared • EDS Guide to Strengthening Second Generation RPSs www.eds.org.nz12
- 13. Regional Plans www.eds.org.nz13 The purpose of these plans is to assist the regional council in carrying out its functions under the RMA. These functions relate to: • Soil conservation • Water quality and quantity • Aquatic ecosystems • Biodiversity • Natural hazards • Hazardous substances • Discharge of contaminants • Allocation of natural resources. A regional council must prepare a regional coastal plan (applying below mean high water springs) but other regional plans are optional. Regional plans must include objectives, policies and rules.
- 14. Regional coastal plans Regional coastal plans specifically address activities in the coastal marine area They may provide for aquaculture management areas and the imposition of charges for the occupation of the common marine and coastal area
- 15. Policies and plans www.eds.org.nz15 National Policy Statements (incl NZCPS) Regional Policy Statements Regional Plans District Plans National Environmental Standards
- 16. District Plans www.eds.org.nz16 A territorial authority (city or district council) must prepare a district plan for its district Purpose of these plans is to assist territorial authorities in carrying out their functions under the RMA. These include: • Effects of land use • Impacts of land use on natural hazards and the management of hazardous substances • Noise • Activities on the surfaces of rivers and lakes • Impacts of land use on indigenous biological diversity District plans must include objectives, policies, and rules
- 17. Combined regional and district documents A document that is 2 or more of the following: Regional policy statement Regional plan District plan www.eds.org.nz17
- 18. Hierarchy of policies and plans www.eds.org.nz18 National Policy Statements (incl NZCPS) Regional Policy Statements Regional Plans District Plans National Environmental Standards
- 19. Role of Minister of the Environment Functions of the Minister for the Environment include: • National Policy Statements • National Environmental Standards • Matters of National Significance which can be “called in” • Water Conservation Orders • Monitoring And the Minister has powers to: • Investigate performance of local authority • Direct plan change or review of plan • Replace a local authority www.eds.org.nz19
- 20. Role of Ministers Functions of the Minister of Conservation include: • New Zealand coastal policy statements • Approval of regional coastal plans • Monitoring The Minister of Aquaculture also has functions under the RMA relating to applications for coastal permits for aquaculture www.eds.org.nz20
- 21. Roles of Councils Regional Councils: • Regional Policy Statements • Regional Plans • Resource consenting • Monitoring District Councils: • District Plans • Resource consenting • Monitoring Unitary Councils: • Perform the combined role of regional and district councils (e.g. Gisborne) www.eds.org.nz21
- 22. Types of Consents A resource consent is the general term for: • A land use consent • A subdivision consent • A coastal permit • A water permit • A discharge permit www.eds.org.nz22
- 23. Activity Status • Permitted activity: A resource consent is not required if the activity complies with the conditions specified • Controlled activity: A resource consent is required, however the consent must be granted, unless a limited exception applies. The power to impose conditions is restricted to specified matters • Restricted discretionary activity: A resource consent is required, however the power to decline a consent or impose conditions is restricted to specified matters. www.eds.org.nz23
- 24. Activity Status www.eds.org.nz24 • Discretionary activity: A resource consent is required and the power to decline consent or impose conditions is not restricted. • Non-complying activity: A resource consent is required and the power to grant consent is restricted to circumstances where the consent authority is satisfied the adverse effects of the activity on the environment will be minor OR the activity will not be contrary to the objectives and policies of the relevant plan. • Prohibited activity: No application for resource consent can be made or granted.
- 25. Provisions relevant to tangata whenua PART 2: • Section 5: Sustainable management includes enabling people and communities to provide for their cultural wellbeing. • Section 6(e): The relationship of Māori and their cultural and traditions with their ancestral land, water, sites, wāhi tapu, and other taonga is a matter of national importance. • Section 7(a): Decision makers must have particular regard to kaitiakitanga • Section 8: Decision makers must take into account the principles of the Treaty of Waitangi. www.eds.org.nz25
- 26. Provisions relevant to tangata whenua Consultation: Schedule 1, clause 3: A local authority is required to consult with tangata whenua, through iwi authorities, during the preparation of a policy statement or plan. Iwi Management Plans: Sections 61, 66, 74: A planning document prepared by a recognised iwi authority must be taken into account when a policy statement or plan is prepared. Joint Management Agreement: Section 36B: A local authority may enter into a joint management agreement with an iwi authority or group that represents hapu to perform functions of the local authority. www.eds.org.nz26
- 27. RMA Reforms The Government recently released a discussion document which proposes a number of changes to the RMA. Two key proposals: • Considerable changes to sections 6 and 7. • Enhancement of the powers of Ministers to intervene in local decision making. Consultation on the discussion document has now closed but further consultation on the final proposals will occur later in the year. www.eds.org.nz27
Editor's Notes
- My name is Nicola de Wit and I am a lawyer at the Environmental Defence Society. I am going to run through an overview of the Resource Management Act (“or the RMA”)
- Part 2 of the RMA contains the purpose and principles of the Act. Section 5 contains the overriding purpose.Section 6 contains matters of national importance which decision makers must 'recognise and provide for'.Section 7 contains other matters which decision makers must 'have particular regard to' Section 8 relates to the Treaty of Waitangi and requires decision makers to 'take into account the principles of‘ the Treaty.Part 2 of the RMA contains a clear hierarchy. The direction to ‘recognise and provide for’ matters of national importance is deliberately stronger than the direction to ‘have particular regard to’ the other matters.However, the purpose is the most important consideration and it is the bar against which all RMA decisions are measured.
- So the purpose of the RMA is the sustainable management of natural and physical resources. The RMA says that sustainable management means managing the use, development and protection of natural and physical resources to enable people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety whilesustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and avoiding, remedying, or mitigating any adverse effects of activities on the environment. The short and sweet version is – sustainable management isenabling people and communities to provide for their wellbeing at the same time as protecting the environment.The courts have adopted an 'overall judgement approach‘ to the purpose of sustainable management. This means decision makers should make a broad overall judgement as to whether the proposal represents sustainable management taking into account all relevant factors that apply to the particular circumstances. Therefore, a proposed development while fails to meet one or more of the requirements of subsections (a) to (c) above may still be deemed to constitute sustainable managementif it generates substantial positive benefits.
- Section 6 sets out seven matters of national importance: preserving natural character, protecting outstanding natural features and landscapes, protecting significant indigenous biodiversity, maintaining and enhancing public access, the relationship of Maori with taonga, protection of historic heritage and protection of customary activities.Section 6 matters are subordinate to the purpose of sustainable management and there is no requirement that these matters should be achieved 'at all costs'. However the requirement that decision-makers recognise and provide for matters of national importance implies that these values have a significant priority. The phrase “recognise and provide” requires action by decision-makers.
- Section 7 sets out other matters which decision makers must ‘have particular regard to’. These include kaitiakitanga, efficiency, maintaining and enhancing amenity values and the quality of the environment, the intrinsic values of ecosystems, the finite characteristics of resource, the effects of climate change, and the benefits of renewable energy.The requirement to ‘have particular regard to’ these matters is “not just an obligation to hear and understand what is said, but also to bring what is said into the mix of decision making”. However, after looking into the matter raised, a decision maker may in its discretion reject it as insufficiently relevant or worthy of weight. SeeTakamore Trustees v Kapiti Coast District Council [2003] NZRMA 433 at 455 and Long Bay-Okura Great Park Society Inc v North Shore City Council (NZEnvC A078/08, 16 July 2008) at [282].
- Section 8 requires decision makers to take into account the principles of the Treaty of Waitangi.The principles of the Treaty are “the underlying mutual obligations and responsibilities which the Treaty places on the parties”. These include the duty for the parties to the Treaty to act reasonably towards each other and in utmost good faith, the requirement for the Crown to make informed decisions, which will usually require consultation, and the requirement for the Crown to actively protect Maori interests.The RMA requires decision makers to ‘take into account’ to the principles of the Treaty. Unlike the phrase ‘recognise and provide for’ this does not require actual provision to be made for the principles of the Treaty, instead it requires decision makers to consider the principles of the Treaty when making a decision, to weigh them alongside other factors and give whatever weight is appropriate in the circumstances.
- So, Part 2 of the RMA is where you will find the purpose and the principles of the RMA. It is expected that policy statements and plans will contain provisions relating to these matters and if you are preparing a submission you will want to discuss these matters.
- The RMA doesn’t get into the detail of environmental management instead it sets out a framework for the preparation of policy statements and plans. The national level planning documents are called national policy statements and national environmental standards.
- National policy statements enable central government to prescribe objectives and policies on resource management matters of national significance. he Minister of Conservation is required to prepare a New Zealand Coastal Policy Statement (section 57), but other national policy statements (prepared by the Minister for the Environment) are optional. However, we now have three other national policy statements relating to electricity transmission, renewable electricity generation and freshwater management.
- National environmental standards (NES) are regulations. They prescribe technical standards, methods or requirements, including rules. They can also require monitoring. They provide certainty about theserequirements across the country by setting out minimum requirements for particular activities. We currently have five national environmental standards relating to air quality, drinking water, telecommunications, electricity transmission and soil contamination.
- At a regional level, there are regional policy statements and regional plans.
- Regional policy statements are ‘high level’ documents which must be prepared for each region. They provide an overview of the region’s resource management issues and set out objectives, policies and methods to achieve integrated management of the region’s resources. They often also include maps which show the location of resources within the region.Regional Policy statements cannot include rules.Many regional councils are in the process of preparing their second regional policy statement since the enactment of the RMA – I understand that this is on the agenda in the next few years for Gisborne. So it is worth keeping in mind that EDS has published a guide on regional policy statements – called Strengthening Second Generation RPSs – and it is available on our website.
- Regional plans allow regional councils to carry out their functions. These functions relate to:Soil conservationWater quality and quantityAquatic ecosystemsBiodiversityNatural hazardsHazardous substancesDischarge of contaminantsAllocation of natural resources.Regional councils must prepare a regional coastal plan, but other regional plans are optional. Most regional councils have a number of plans addressing their various functions.Must include objectives, policies and rules.
- Regional coastal plans specifically address activities in the coastal marine area (below mean high water springs). (A range of natural indicators can be used to provide an qualitative assessment of MHWS, including toe of the dune, toe of the cliff, edge of vegetation, highest line of driftwood, tide marks on fence posts and, for estuaries, the seaward edge of glasswort (Salicorniaaustralis) or other salt marsh plants.)They may provide for aquaculture management areas and the imposition of charges for the occupation of the common marine and coastal area
- At a district level, councils must prepare district plans.
- They allow district councils to carry out their functions by setting out objectives, policies and rules.
- Gisborne District Council is of course a unitary authority. This means that it is both regional and district council. It must have a regional policy statement, a regional plan addressing regional functions and a district plan addressing district functions. But it is able to prepare a combined plan which includes two or more of these documents. It could also join up with another council to prepare a combined document if it wished.(section 80)
- As I said earlier these policy statements and plans each have a place in the hierarchy of policy statements and plans. District plans are required to be'not inconsistent' with regional plans, district and regional plans are required to 'give effect to' regional policy statements, and all these documents are in turn required to 'give effect to' national policy statements. Regional and district plans must accord with national environmental standards, although often plans may be more stringent. This hierarchy helps to promote consistency and integration between documents.
- Unitary authorities – all of the above!
- Land use (breach ss 9 – use of land or 13 – beds of lakes and rivers)Subdivision (breach s 11)Coastal permit (breach ss 12, 14, 15, 15A, 15B)Water permit (breach s 14 -)Discharge permit (breach s 15)(section 87)
- (section 87A)
- (section 87A)