4. Implementation of the Regulations

4.1 Relationship between national environmental standards (sections 43B–43E) and district plans

• cannot be more stringent than the national environmental standard (unless the national environmental standard expressly says that it may be); and
• cannot be more lenient than the national environmental standard.

As we have seen, the National Environmental Standards for Telecommunication Facilities (the NES) took effect on 9 October 2008 and take precedence over existing rules in council district plans that address the same matters, unless the NES regulations expressly state that a rule or consent may be more stringent. The regulations allow district plans to include rules that are more stringent only in terms of trees and vegetation, historic heritage, visual amenity and/or proximity to coastal marine areas. A rule or consent cannot be more stringent in terms of the bulk and location performance standards in the regulations.

How section 43B of the RMA might operate is illustrated below.

• A rule cannot be more lenient than the regulations. An example of where a rule is more lenient is in Waitakere City, where, under the district plan, above-ground infrastructure can currently cover 2 square metres in area. Following implementation of the regulations, when cabinets are proposed in the residential zones of the city, either individually or cumulatively totalling between 1.8 and 2 square metres, they will be considered a controlled activity.
• A resource consent granted prior to the regulations prevails over the standard. Where a decision has not yet been made, a resource consent prevails over the NES if the consent application was the subject of a decision on whether (or not) to notify it before the date on which the NES was notified in the Gazette (ie, 11 September 2008).

Section 43D of the RMA outlines the relationship between an NES and designations. The existing designation takes precedence unless it lapses or is altered to an extent that the conditions of the NES are relevant. However, there are specific instances where that is not the case, and for clarity refer to section 43D and section 176A of the RMA.

4.2 Influence of a national environmental standard on district plans and proposed district plans

Section 43A of the RMA, subsection 5, states in relation to the influence of a national environmental standard on district plans and proposed district plans:

(5) If a national environmental standard allows an activity and states that a resource consent is not required for the activity, or states that an activity is a permitted activity, the following provisions apply to plans and proposed plans:

(a) a plan or proposed plan may state that the activity is a permitted activity on the terms or conditions specified in the plan; and

(b)  the terms or conditions specified in the plan may deal only with effects of the activity that are different from those dealt with in the terms or conditions specified in the standard; and

(c) if a plan’s terms or conditions deal with effects of the activity that are the same as those dealt with in the terms or conditions specified in the standard, the terms or conditions in the standard prevail.

4.3 Removal of plan rules that duplicate or conflict with national environmental standard provisions

Under section 44A, rules in plans that duplicate or conflict with provisions contained in a national environmental standard must be removed by amending the plan. This can be done without using the usual processes under Schedule 1, and must be done as soon as practicable after the standard comes into force. A rule is deemed to conflict with a standard’s provision if:

• the plan rule is more restrictive than the standard’s provision, or
• a plan rule is more lenient than the standard’s provision.

Councils may amend their plans to include references to a national environmental standard (such as in other rules where compliance with the standard may be relevant) without having to use Schedule 1.

4.4 Certificates of compliance

The telecommunications industry often applies for certificates of compliance for undertaking routine works in the road reserve. This practice gives an applicant “peace of mind” prior to undertaking works that resource consent is not required.

Section 139 enables councils (and the Environmental Protection Authority for called-in applications) to issue certificates of compliance where a national environmental standard makes an activity lawful without a resource consent (in addition to the existing power in respect of plan rules). The ability to issue certificates of compliance for activities permitted by a national environmental standard has been provided for from 1 October 2009 by the Resource Management (Simplify & Streamline) Amendment Act 2009.

4.5 Existing-use rights

Existing-use rights will apply in the same way to activities established as permitted activities under the NES as they do to activities established as permitted activities under district plan rules. Accordingly, when the environment adjoining a telecommunication facility changes around it, there is no requirement to modify the facility in response to those changes. For example, when a new residential building is established closer to a cabinet located in the road reserve, there is no requirement to modify the facility to satisfy noise rules from a closer measurement point.

4.6 Public complaints guidance

The local council is likely to be the first port of call for any public complaints about equipment erected under the NES. In the first instance, the council should direct any complainant to the telecommunications company for the infrastructure if they can identify the network operator.

As a road-opening notice should be obtained for all work in roads, the council should be able to track down adequate records to direct any complainant to the appropriate company. The council has a role in enforcement if equipment has been installed that is not within permitted activity controls of the NES or is the subject of a resource consent.