Appendix B: Relevant Resource Management Act 1991 Provisions

Part 5: Standards, policy statements, and plans

National environmental standards

43. Regulations prescribing national environmental standards

1. The Governor-General may, by Order in Council, make regulations, to be known as national environmental standards, that prescribe any or all of the following technical standards, methods, or requirements:

   (i)      contaminants;
   (ii)     water quality, level, or flow;
   (iii)    air quality;
   (iv)    soil quality in relation to the discharge of contaminants;

   (b)     standards for noise;

   (c)     standards, methods, or requirements for monitoring.

2. The regulations may include:

   (a)     qualitative or quantitative standards;
   (b)     standards for any discharge or the ambient environment;
   (c)     methods for classifying a natural or physical resource;
   (d)     methods, processes, or technology to implement standards;
   (e)     exemptions from standards;
   (f)      transitional provisions for standards, methods, or requirements.

3. Section 360(2) applies to all regulations made under this section.

43A  Additional powers to implement national environmental standards

1. National environmental standards may –
   

   (a)     prohibit an activity;
   (b)     allow an activity;
   (c)     restrict the making of a rule or the granting of a resource consent to matters specified in a national environmental standard;
   (d)     require a person to obtain a certificate from a specified person stating that an activity complies with a term or condition imposed by a national environmental standard:
   (e)     specify, in relation to a rule made before the commencement of a national environmental standard –

   (i)      the extent to which any matter to which the standard applies continues to have effect; or
   (ii)     the time period during which any matter to which the standard applies continues to have effect;

   (f)      require local authorities to review, under section 128(1), all or any of the permits to which paragraph (ba) of that subsection applies as soon as practicable or within the time specified in a national environmental standard.

2. A national environmental standard that prohibits an activity –

   (a)     may do one or both of the following:

   (i)      state that a resource consent may be granted for the activity, but only on the terms or conditions specified in the standard; and
   (ii)     require compliance with the rules in a plan or proposed plan as a term or condition; or

   (b)     may state that the activity is a prohibited activity.

3. If an activity has significant adverse effects on the environment, a national environmental standard must not, under subsections (1)(b) and (4), –

   (a)     allow the activity, unless it states that a resource consent is required for the activity; or
   (b)     state that the activity is a permitted activity.

4. A national environmental standard that allows an activity –

   (a)     may state that a resource consent is not required for the activity; or
   (b)     may do one or both of the following:

   
   (i)      state that the activity is a permitted activity, but only on the terms or conditions specified in the standard; and
   (ii)     require compliance with the rules in a plan or proposed plan as a term or condition.

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.

6. A national environmental standard that allows a resource consent to be granted for an activity –

   (a)     may state that the activity is –

   (i)      a controlled activity; or
   (ii)     a restricted discretionary activity; or
   (iii)    a discretionary activity; or
   (iv)    a non-complying activity; and

   
   (b)     may state the matters over which –

   (i)      control is reserved; or
   (ii)     discretion is restricted.

43B   Relationship between national environmental standards and rules or consents

1. A rule or resource consent that is more stringent than a national environmental standard prevails over the standard, if the standard expressly says that a rule or consent may be more stringent than it.
2. For the purposes of subsection (1), –

   (a)     a rule is more stringent than a standard if it prohibits or restricts an activity that the standard permits or authorises;
   (b)     a resource consent is more stringent than a standard if it imposes conditions on an activity that the standard does not impose or authorise.

3. A rule or resource consent may not be more lenient than a national environmental standard.
4. For the purposes of subsection (3), a rule or resource consent is more lenient than a standard if it permits or authorises an activity that the standard prohibits or restricts.
5. A resource consent that exists when a national environmental standard is made prevails over the standard. This subsection does not apply to water, coastal, or discharge permits.
6. A water, coastal, or discharge permit that exists when a national environmental standard is made prevails over the standard until a review of the permit’s conditions under section 128(1)(ba) results in some or all of the standard prevailing over the permit.
7. A national environmental standard that exists before the hearing of an application for a resource consent begins prevails over a resource consent granted as a result of the application.
8. A national environmental standard that prescribes transitional provisions relating to a resource consent application notified before the commencement of the standard prevails over a resource consent granted as a result of the application to the extent (if any) specified in the standard.
9. If a national environmental standard requires a resource consent to be obtained for an activity, sections 10, 10A, 10B, and 20A(2) apply to the activity as if the standard were a rule in a plan that had become operative.

43C   Relationship between national environmental standards and water conservation orders

1. A water conservation order that is more stringent than a national environmental standard applying to water prevails over the standard.
2. A national environmental standard applying to water that is more stringent than a water conservation order prevails over the order.

43D   Relationship between national environmental standards and designations

1. A designation that exists when a national environmental standard is made prevails over the standard until the earlier of the following:

   (a)     the designation lapses:
   (b)     the designation is altered under section 181 by the alteration of conditions in it to which the standard is relevant.

2. If the conditions of a designation are altered as described in subsection (1)(b), the standard –

   (a)     applies to the altered conditions; and
   (b)     does not apply to the unaltered conditions.

3. A national environmental standard prevails over a designation that requires an outline plan if, when the standard is made, –

   (a)     the designation exists; and
   (b)     no outline plan for the designation has completed the process described in section 176A.

4. A national environmental standard that exists when a designation is made prevails over the designation.
5. A use is not required to comply with a national environmental standard if –

   (a)     the use was lawfully established by way of a designation that has lapsed; and
   (b)     the effects of the use, in character, intensity, and scale, are the same as or similar to those that existed before the designation lapsed; and
   (c)     the standard is made –

   (i)      after the designation was made; and
   (ii)     before or after it lapses.

6. Work under a designation is not required to comply with a national environmental standard if the work has come under the designation through the following sequence of events:

   (a)     the work is made; and
   (b)     the standard is made; and
   (c)     the designation is applied to the work.

7. In this section, conditions includes a condition about the physical boundaries of a designation.

43E   Relationship between national environmental standards and bylaws

1. A bylaw that is more stringent than a national environmental standard prevails over the standard, if the standard expressly says that a bylaw may be more stringent than it.
2. For the purposes of subsection (1), a bylaw is more stringent than a standard if it prohibits or restricts an activity that the standard permits or authorises.
3. A bylaw may not be more lenient than a national environmental standard.
4. For the purposes of subsection (3), a bylaw is more lenient than a standard if it permits or authorises an activity that the standard prohibits or restricts.
5. In this section, bylaw means a bylaw made under any enactment.

43F  Description of discharges in national environmental standards for discharges

A national environmental standard for an activity that is a discharge may describe the discharge by referring to –

(a)     particular contaminants or sources of contaminants in a discharge; or
(b)     the circumstances or sources of a discharge.

43G  Incorporation of material by reference in national environmental standards

A national environmental standard may incorporate material by reference under Schedule 1AA.

44  Restriction on power to make national environmental standards

The Minister must not recommend to the Governor-General the making of any national environmental standard unless the Minister has –

(a)     notified the public and iwi authorities of –

(i)      the proposed subject matter of the standard; and
(ii)     the Minister’s reasons for considering that the standard is consistent with the purpose of the Act; and

(b)     established a process that –

(i)      the Minister considers gives the public and iwi authorities adequate time and opportunity to comment on the proposed subject matter of the standard; and
(ii)     requires a report and recommendation to be made to the Minister on those comments and the proposed subject matter of the standard; and

(c)     publicly notified that report and recommendation.