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The COVID-19 ‘lockdown’ has presented challenges for every part of our lives. Resource management processes have been significantly affected and will need to adapt as we move through Levels 3 and 2 and hopefully back to normality soon.
The Government correctly emphasised the need for resource management processes to continue throughout the lockdown period. Minister Parker’s direction to local government to continue resource consent processing as an essential service, so that development projects are not unnecessarily delayed, was hugely beneficial.
Our economic recovery is reliant on development projects getting underway as soon as possible. Ensuring resource management processes are fit for purpose is key. Depending on how it is implemented, the Resource Management Act (RMA) will either be viewed as a hand brake to development or an instrument that can be adjusted to reflect the times.
This Brief Counsel examines the initial impacts of the COVID-19 lockdown on resource management processes. We consider how applicants might navigate the challenges it presents as we move down the alert levels. We also reflect on some of the learnings from Level 4, which could be leveraged to improve current RMA processes. ‘Let’s not let a crisis go to waste.’
The impact of the lockdown on the processing of resource consent applications and proposed planning documents has been significant. But, processing has been able to be managed in most instances that we are aware of to avoid a complete cessation of work.
Many consent processing steps are desk-based. Some steps that have traditionally involved in-person meetings (such as pre-application meetings) have been satisfactorily replaced with virtual alternatives – “Zoom” is now evidently a common English term. However, despite the technological alternatives, some councils have extended consenting time limits, citing COVID-19 restrictions. While COVID-19 is undoubtedly a special circumstance, councils still have a duty to avoid unreasonable delay in processing consent applications. Processing should be advanced wherever possible. Council officer site visits should now be able to be undertaken, provided government guidance is followed. Consequently, general time extensions to consenting time limits should no longer be necessary.
We recommend consent applicants speak with council officers to understand any restrictions on processing and impacts on time limits specific to their project. In many cases, there will be project-specific solutions to avoid unnecessary delay.
In respect of planning documents, many councils have taken proactive steps to enable processes to continue during lockdown. This has included notifying planning documents and decisions while amending (or seeking waivers to authorise amendment of) statutory timeframes or alternative electronic service methods.
While COVID-19 restrictions do not preclude notification of applications, Level 4 restrictions in particular had the potential to create some challenges. Both limited and public notification require the printing and posting of notices (to affected persons and prescribed persons respectively). While postal services were running during Alert Level 4 as an essential service, access to printing facilities may have presented an issue. Going forward, the lower alert levels should not create legal or practical impediments to notification.
There are however fairness issues to be considered, given the important role that public participation plays in many resource management processes. It is important to ensure that parties with a right to submit continue to be able to exercise those rights. There is potential for legal challenges where natural justice is breached. Most submissions are filed online. However, for those who rely on hard copy (for example some lay submitters), submission forms may not be accessible and receipt might be delayed with council offices closed. This situation may require some flexibility from applicants in relation to late submissions.
The needs of the affected community also need to be carefully considered. Some applicants that have progressed applications during the lockdown period have received negative feedback and publicity around the timing. However, there is also a real need for projects to proceed. In our experience, the drivers for applicant activities during Level 4 have been internal programmes and pressures, rather than applicants seeking to gain any benefit from the COVID-19 restrictions. The setbacks from the restrictions have made it even more important for applications to progress without delay.
The balance may be a fine one. Any timing opposition should reduce at the lower alert levels, but will still require thought around whether submitters are able to get the information they need and have sufficient time to prepare and lodge submissions. Councils also play an important role in helping the public understand that resource consent processing needs to continue and plays an important role in economic recovery.
We suggest applicants and councils engage over alternative ways to make application documents available to the public. Such measures could include setting up specific viewing locations using timetables for attendance and applying social distancing restriction protocols and tracing measures. But, be aware that innovation in these processes may present legal risks and the government’s COVID-19 guidelines will need to be followed at all times.
Mediation and hearings
We have seen a range of approaches to mediation and hearings during the lockdown period. Some mediations and hearings have proceeded virtually. Others have been placed on hold. Restrictions on public gatherings and domestic travel are likely to continue for some time. It will not be possible, nor desirable, to delay mediation and hearings indefinitely.
Parties may need to weigh up the pros and cons of proceeding with a virtual hearing or mediation, or waiting until normal activity can resume. However, as resource management practitioners become more accustomed to virtual processes, they will invariably run more smoothly. Alert Level 4 has seen a huge upskilling across the board in virtual attendances via a range of platforms. We have also seen huge efficiencies for parties not required to travel to mediations across the country, sometimes for long periods to address relatively minor appeal points. We would see major advantages to leveraging those learnings for future mediation processes, particularly for participants with confined or more minor interests.
Further, the risks associated with virtual hearings and mediations (loss of interaction, increased potential for miscommunication, the loss of conversation ‘flow’, etc) can be managed in part by careful preparation with the applicant team, and through the setting of protocols with the decision maker and other parties that are going to be present.
Social distancing and increased construction site restrictions will inevitably make construction activities less efficient. The lockdown has also greatly affected construction requiring earthworks, as the general earthworks season closes on 30 April.
We can see gains for applicants in testing existing consents to obtain increased construction management flexibility. For example, existing construction traffic restrictions may not be necessary during level 2 and 3, given the lower volumes of traffic on the road. Construction hours could be extended for a short period to add more hours to the day without creating excessive noise and materially impacting neighbours. Winter earthworks may be able to be undertaken with some additional erosion and sediment control measures in place.
Applicants will need to evaluate the merits of such measures based on their construction programmes and existing consent conditions. They will also need to get advice from relevant technical experts, to ensure they obtain variations to consents where necessary and do not trigger effect thresholds for notification, which could quickly erode any time saving benefits. Increased engagement with neighbours during this time will be beneficial. We anticipate many neighbours will understand the need to get the economy moving again. They may be also influenced by the downside for them of neighbouring construction activities being materially extended unless some flexibility is applied.
As expected, councils have generally taken a practical approach to enforcement during lockdown. This has involved acceptance of unavoidable compliance issues related to supply change and human resourcing constraints and general business interruption - provided compliance issues have been clearly communicated and minimised/mitigated. Some councils took additional steps such as issuing public statements to consent holders regarding their compliance expectations and approach to enforcement during lockdown, as well as creating specific COVID-19 teams ready to provide assistance and advice to consent holders.
As we move into the lower alert levels council approaches to enforcement will continue to be tested. Leniency on material enforcement matters from councils will most likely reduce, unless there are compelling reasons as there were in Level 4. Councils may seek to apply more relaxed construction management rules, but the legality of such measures (particularly their ability to override consent conditions or planning rules) may be questioned. Developers will need to consider carefully whether they should take advantage of such policies.
Change in the RMA arena is often perceived to be glacial. It is therefore important at a time of considerable forced adaptation to take stock. We think there are real opportunities to learn from resource management practices during the COVID-19 lockdown. In particular, the use of videoconferencing software for virtual pre-application meetings and virtual proceedings has clear time and cost savings for applicants and potential efficiencies for councils and submitters. Many COVID-19 practices have the potential to improve efficiency, reduce costs and enable greater public participation and understanding of resource management processes over the longer term.
This is one of a series of Brief Counsels Chapman Tripp has produced on COVID-19.