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Frequently asked questions on COVID-19 for local government

Frequently asked questions on COVID-19 for local government

Frequently asked questions on COVID-19 for local government

Thursday 23 April, 2020

The Ministry for the Environment (“MFE”) has released information on frequently asked questions regarding local government and Resource Management Act 1991 (“RMA”) obligations within the context of the COVID-19 response and recovery. Key to MFE’s message, is while COVID-19 may pose challenges, it is essential that consenting, plan making and compliance services continue throughout this time, particularly to the extent that they relate to enabling and supporting essential services, addressing immediate health or life safety risks, and preventing serious environmental harm.

This article is intended to provide an overview of MFE’s response and guidance relating to consenting, plan making and compliance services under the RMA.

Resource consent application processes

Receiving resource consent applications

The RMA already enables resource consent applications to be lodged electronically, as reflected in Form 9 of the Resource Management (Forms, Fees, and Procedure Regulations) 2003. MFE provides that where consent authorities that can receive resource consent applications electronically, it should do so.

Processing resource consent applications during COVID 19 alert level 4

Consents should continue to be processed remotely wherever possible however, MFE recommends that consent authorities take a pragmatic approach to processing timeframes under the RMA during the COVID-19 alert level 4. MFE states that consent authorities have a broad discretion under ss 37 and 37A of the RMA to extend timeframes, and to waive procedural requirements relating to time, method for serving documents and information requirements. It is noted that these sections give consent authorities the discretion to double the RMA statutory timeframes when special circumstances such as COVID-19 apply, and once other considerations are taken into account, such as the interests of directly affected parties.  While the ability to extend timeframes and to waive procedural requirements is possible under the RMA, ss 37 and 37A are somewhat limited in application. Needless to say, the criteria in those sections never contemplated the current circumstances around COVID-19. We note that timeframes can be increased further with the agreement of applicants.

It is critical that consent authorities give priority to consent applications relating to essential services where possible.  

The Resource Management (Discount on Administrative Charges) Regulations 2010 sets out that certain working days may be excluded from a discount calculation. Regulation 3 and the interpretation of ‘excluded days’ is of particular relevance. Working days where consents are not processed due to “a reason in any other enactment” may be excluded from discount calculations. The time period within the current State of Emergency and the current Epidemic Notice Period can therefore be excluded.

Consent hearings

The Local Government Act 2002 was amended to allow council meetings to be held remotely if reasonably practicable using audio-visual link (AVL) technology or audio broadcast, etc. until the Covid-19 Epidemic Notice expires (currently 25 June 2020 unless renewed or lifted earlier). Councils are required to provide a recording and/or a written summary of the meeting on their website.

In making a decision to hold a consent hearing remotely using AVL technology or audio broadcast, MFE provides that councils should consider:

  • the availability and quality of the technology to enable any member of the public to watch and listen to the hearing; 
  • the potential impact of the use of technology on the parties (including the ability to assess the credibility of witnesses and the reliability of evidence presented, and the level of contact or interaction that may be needed between participants); and 
  • any other relevant matters, for example whether the applicant and submitters still wish to be heard if it is a remote hearing using AVL technology, and what support can be provided by the council to help parties attend/participate in the hearing.

Considering the above, we recommend that councils consult closely with the applicant and any submitters to the application proposed to be heard by way of AVL or audio broadcast etc., to ensure that no party to the hearing is unreasonably prejudiced by a decision to hold the hearing remotely. Public participation is critical to the RMA, and any decision which compromises a party’s right to be heard should be justified with reasons. 

Site visits for resource consent processing

No site visits can occur while the country remains at alert level 4 unless those site visits are essential to address immediate human health or life safety risk, or to prevent serious environmental harm. Outside of the exceptions for essential services, site visits can be undertaken at alert level 1 to 3 provided council officers and parties involved follow government guidelines i.e. social distancing. MFE recommends that councils  prepare a COVID 19 protocol for site visits for both staff and applicants under the various alert levels and take a risk-based approach when determining whether a site visit is necessary, noting that site visits are not a requirement under the RMA.

Plan processes

Engaging with tangata whenua under Schedule 1

Councils will be aware that iwi authorities have differing levels of capacity and availability during this time, therefore, there may be delays as tangata whenua respond to COVID-19 requirements.  

There are many mandatory requirements under the RMA to consult with iwi and these should not be compromised. MFE recommends that Councils discuss and agree with iwi authorities an engagement and consultation process for the lockdown period and further into the COVID-19 recovery for the purposes of ensuring mandatory requirements for consultation with iwi are able to be met during this time. MFE suggests methods of communication could include teleconference and video conferencing, and electronic documents. 

Monitoring, compliance and enforcement

Monitoring and/or mitigation activities

Addressing immediate health or life safety risks and preventing serious environmental harm can include the maintenance of control devices on mining, forestry sites, and urban and rural earthworks. Maintaining these devices remains the responsibility of the consent holder, while appropriate monitoring and enforcement to ensure this occurs remains the responsibility of councils.

Councils should consider that some actions normally required to comply with consent conditions or plan rules may not be possible during COVID-19 alert level 4. Councils should also exercise their discretion wisely in relation to non-compliance and continued operation of essential services (e.g. supermarkets needing to operate outside consented hours).

Councils should exercise their discretion to determine what inspection tasks can and should continue during the respective alert levels. Priority should be given to inspections required to protect against immediate health or life safely risks, or to prevent serious environmental harm. The requirements of s 332 of the RMA continue to apply. Councils should also phone ahead of an inspection where possible to ensure that contactless inspections can be carried out. Alternative means of inspection and compliance tasks should be considered such as:

  • use of drones or other technology where accessible,
  • desk review using satellite images, or
  • requesting consent holders/contractors to supply site photos where appropriate.

For environmental monitoring tasks, services should continue provided they can be carried out without compromising health and safety and can comply with applicable COVID-19 requirements. If it is not practicable to continue environmental monitoring, these tasks should be suspended.

Prosecutions and enforcement actions during COVID-19

A number of measures have been introduced in response to COVID-19 alert level 4 restrictions, including limiting physical appearances at court hearings and prioritisation of matters. The decision to prosecute or take other enforcement actions sits with council, however the declaration of an epidemic and national state of emergency should be a relevant consideration to any decision to take any prosecutorial action.

A prosecuting agency may need to consider delaying taking any enforcement or prosecution action (subject to any limitation considerations) and whether the matter may be resolved through an alternative solution or even whether any enforcement action is appropriate in light of current circumstances. Councils should:

  • ensure all decisions factor in the circumstances individuals in communities are facing during the lockdown – be reasonable;
  • prioritise issues of public health and safety;
  • promote the use of lower-level enforcement, for example issuing warning letters that do not require a site visit wherever suitable in accordance with council policy.

The COVID19 epidemic will, at least, result in delays in court processing matters of a more minor nature which may limit the ability of councils to take enforcement action at this time. As well, the overriding consideration must be the health and safety of the public.