Compliance with the Resource Management Act (RMA) is among the many challenges arising for business from the COVID-19 lock-down.
Below is some general advice on the sorts of measures you might take.
Managing COVID-19-related RMA non-compliance
While we expect local authorities will take a reasonable attitude toward enforcement, the fact is that the current State of Emergency does not override or absolve obligations to comply with the RMA. The continuum of potential compliance issues runs from minor to major.
- Relatively minor issues: Breaches of administrative resource consent and designation conditions that do not result in any effects on the environment (e.g. filing of monitoring reports, failure to hold meetings, failure to prepare and lodge management plans within the applicable timeframes etc).
- Moderate impact issues: Breaches of monitoring obligations that result in adverse effects not being detected in a timely way and/or appropriately managed/mitigated (e.g. failure to undertake required real time monitoring, or inability to get samples tested, resulting in unmitigated but temporary environmental effects).
- Serious issues: Unauthorised activities (activities undertaken absent compliance with consent conditions, or without consent) that could have potentially serious effects on the environment (e.g. supply chain disruption for discharge treatment chemicals resulting in exceedance of consent condition limits with significant impacts on sensitive receiving environments).
What to do?
We recommend a four-part process, to be considered as part of wider contingency and business interruption plans.
1. Identify your RMA risks
Consider whether the disruption might result in any RMA compliance, process and/or approval issues for your sites and activities. This will include:
- Non-compliance risks – are there any risks of breaching consent conditions or needing to undertake activities that are not authorised?
- On-going consenting risks – are there any consents that have not yet been commenced and, if so, are they at risk of lapsing because you are not able to exercise them? Are there any consents due to expire where you may have difficulty in applying for a renewal within the six month expiry timeframe (which enables you to rely on the existing consent while a replacement application is processed)?
2. Develop a response
Consider what solutions may be available.
Non-compliance risks – depending on the circumstances, your response may involve undertaking an activity in a new way during the business interruption. Where a non-compliance cannot be avoided, you should look at the next best alternative(s) with a view to preserving your legal position vis a vis available defences and emergency powers (both of which are set out below). Some Kiwi ‘number 8’ wire might be helpful here!
In cases where compliance is impossible, the aim should be to show that all reasonable steps were taken to avoid, remedy or mitigate the effect concerned.
Risks to existing consent rights – consents that are due to lapse or expire in timeframes that may be threatened by the national COVID-19 response can be managed. For example, extensions to lapse dates can be sought and councils still enjoy some discretion around the six month pre-expiry timeframe referred to above (although that runs out three months before consent expiry). Communication with the relevant council will be important.
3. Keep a written record
In the case of non-compliances, this should include the identification of the issue, timings, actions taken to avoid or prevent the breach, the reasons the breach arose (if known) and the alternative measures taken or investigated to avoid, remedy or mitigate the event or its effects.
It doesn’t need to be too formal – email exchanges are fine. It is also important to record communications with council and other relevant authorities. Records should be made as contemporaneously as possible, save that record keeping should, of course, not take precedence over managing health risks or environmental effects.
4. Maintain lines of communication
If you have identified a potential compliance issue, it is important to ensure that lines of communication with councils and, where appropriate, other officials, are maintained.
Early indications are that they are willing to engage and that they will be accommodating. We are aware that some have extended compliance timeframes, others have created specific contact points for compliance issues during the lockdown. Some have also confirmed that, while they cannot authorise non-compliance, they understand that capabilities will be diminished and will consider the impact of COVID-19 and contingency planning when considering non-compliances.
In the event of a prosecution
Taken in the round, the likelihood that councils will bring prosecution proceedings in respect of environmental issues flowing from the lock-down or COVID-19 business interruption is low, particularly against essential businesses. This is of course assuming that the consent holder’s actions in the circumstances are reasonable, contingency planning has been appropriate, the event is unavoidable and/or necessary to avoid other serious issues, communication with regulators is maintained throughout, and the effects are appropriately managed after the fact.
In the event that a prosecution is brought, and absent any other legislation being passed to assist (which may occur in the fullness of time), you may have access to some or all of the following RMA provisions.
- Strict liability defence: Section 341 of the RMA provides a specific statutory defence to prosecution. To rely on this defence, you would need to establish that:
- The action or event was necessary to save or protect life or health, prevent serious damage to property, or avoid an actual or likely effect on the environment your actions were reasonable in the circumstances, or
- The action or event was due to an event beyond your control AND you could not have foreseen or provided against the event.
- And in both cases, you adequately mitigated or remedied the effects of the action/event after it occurred.
Time limits apply to the notification of the intention to raise this defence.
- Emergency Works: Section 330 of the RMA allows certain public entities and private businesses (including councils, some network utility operators and lifeline utilities) to take actions without consent where it is necessary to remove the cause, or mitigate the effect of, an emergency. Particular tests apply to the nature of the emergency and they are not immediately applicable pandemic-related issues but may become relevant where, as a result of business interruption, emergency works are required. Post-activity notification and consent application obligations also apply.
- Civil defence emergency activities: The Civil Defence Emergency Management Act 2002 (CDEMA) and the s330B civil defence emergency powers under the RMA are now in play. Compliance with this section means certain actions related to land use, water take and discharges will not amount to RMA offences even when undertaken without consent or in breach of consent conditions. However, this only applies to actions:
- that are “taken by or on behalf of persons exercising emergency powers” during a state of emergency to “remove the cause of, or to mitigate the any actual or adverse effect of the relevant emergency”, and
- where following the action, the person who authorised it:
- notifies the relevant council within seven working days of the activity, and
- applies for consent for an activity with continuing adverse effects within 20 working days of the above notification.
The latter two provisions above may become valuable tools to enable emergency non-consented activities to be undertaken, although liaison with the appropriate officials and Ministers will obviously be needed.
Leaving aside immediate risks, COVID-19 could have other implications for RMA processes. Although this is in a state of flux and changing day-to-day the current picture is as follows.
Council consenting and planning processes: We are aware that some councils are attempting to continue processing consent applications and progressing planning documents, while others are, or are considering, issuing blanket notices to extend timeframes.
If you have a consent application that is currently being processed, or an application that is nearing lodgement, you should liaise with your key council(s) to confirm the approach they are applying. The more difficult issues during lockdown are likely to be progressing consultation and council hearings.
RMA-related Court processes: The Environment Court is not considered a Category 1 Essential Service Court and will not be sitting until further notice, nor will any in-person mediations occur.
Non-urgent cases will be adjourned but may be the subject of directions from the Court to undertake reasonable work to keep the proceedings moving and/or may be determined on the papers. More urgent cases may be the subject of remote actions by Judges and Commissioners.
We suggest you continue to work towards any previous Court-directed filing or reporting dates but that you/your advisers liaise with the Court registrars regarding processes and reporting more generally.
For further information, please get in touch with one of our listed contacts.