My favourite parts of the NBEA

As I’m sure you all know by now, the Natural and Built Environments Act (NBEA) which is intended to replace the Resource Management Act (RMA) came into force on 24 August, or at least parts of it did. Fortunately for compliance officers, many of the provisions that will improve the way you can do your work are in force.

It seems a bit odd to be excited about a piece of legislation but the NBEA contains some provisions that compliance officers have been asking for for years. So what are my favourites?

Service of notices

Despite the fact that our main form of communication has been by email for a long time now, it was not possible to serve notices such as abatement notices and infringement notices by email under the RMA unless the person being served specifically said their email address was their address for service, which of course rarely happened. Well that has finely changed. Under the NBEA, one of the options for serving notices is by email, even if the recipient doesn’t tell you it is their address for service (s 742). This small change will make your lives much easier.

Cost recovery for investigation

The lack of clarity in the RMA about whether you could recover costs for investigating unconsented work/non-compliance has resulted in multiple contradictory legal opinions, considerable angst for compliance officers, a significant loss of financial resources, and definitely did not comply with the “polluter pays principle”. This has finally changed and you can now recover reasonable costs incurred in monitoring or enforcing a person’s compliance with the Act and this specifically includes any action carried out to determine whether there has been a contravention of the Act (s722). So at last, no more confusion about whether you can recover costs!

New offence of breaching a resource consent

My other favourite provision of the NBEA is the one that states that it is an offence to contravene a condition of a resource consent (s701(c)). Up until now, in order to issue an infringement notice or prosecute someone for a breach of a condition, we had to prove that the contravention of a condition was a breach of s9 which at times involved considerable legal contortions. Now it is quite straight forward.

And of course, I think the significant increase in penalties which will make prosecutions more financially feasible, the new civil remedies, especially enforceable undertakings, and the extension of the limitation period to two years are all great improvements on the RMA.

Janet Whiteside – October 2023