RMA Reform

RMA Reform – The long-awaited Natural and Built Environment Bill (NBE Bill) and Spatial Planning Bill (SP Bill) have been introduced to Parliament.

The two Bills are the first of three that make up the reform of the current resource management system, with the third being the anticipated Climate Change Adaptation Bill, to be released next year. While there are some similarities with the Resource Management Act in some of the institutions (such as the Court), mechanisms (such as the National Policy Statements for Freshwater Management and Highly Productive Land) and processes such as enforcement, the Bills represent significant changes to the current regime, and the transition to the new regime will likely take at least 10 years.

NBE Bill

The NBE Bill has been introduced as the replacement for the Resource Management Act 1991 (RMA), and addresses similar matters such as plan making, consenting, designations, and compliance and enforcement. The purpose of the NBE Bill is to enable use, development and protection of the environment in a way that recognises and upholds te Oranga o te Taiao, a te ao Māori concept on the health of the environment and interconnectedness, including with people. The purpose also includes:

• supporting the well-being of present generations without compromising the well-being of future generations;
• promoting outcomes for the benefit of the environment;
• complying with environmental limits and targets; and
• managing adverse effects.

SP Bill

The SP Bill provides the requirements for developing Regional Spatial Strategies (RSS). Each RSS is to set strategic direction for use, development, protection, restoration, and enhancement of the environment for each region, for a period of at least 30 years. The intention is to provide for integrated management of the environment by identifying key issues and opportunities facing each region and developing strategies for responding to them, with a spatial focus – ie identifying where/which areas are important for urban and commercial development, infrastructure, significance to Māori, natural resources, in need of protection

Intended outcomes of the reform

The Ministry for the Environment’s announcement of the NBE Bill and SP Bill states that the reform is intended to bring about the following changes to the current resource management system:

• planning for positive outcomes, not just managing adverse effects;
• a more effective role for Māori, one that gives effect to the principles of Te Tiriti o Waitangi;
• more integrated and strategic long-term planning for transport, infrastructure, housing, climate resilience and environmental protection;
• a regional, collaborative approach to planning;
• effective partnering of central and local government and iwi/hapū/Māori in planning and delivery;
• stronger, more consistent national direction;
• moving to equitable and efficient resource allocation within limits;
• improved evidence, monitoring, feedback.

Key changes

At a glance the new legislation introduces an array of new policies and processes, but also retains some existing provisions of the RMA scattered throughout. While the NBE Bill is extensive (over 800 sections), it is clear that many matters are yet to be resolved, such as conflict between existing national policy direction, and exactly what the transitional arrangements will be as it is apparent it will take several years for the new plans to be put in place.

Plan making – what will the new rule framework be

There is intended to be a hierarchy of documents that will be put in place in sequence, that will ultimately form the new set of regulations that govern what can and can’t be done on the land.  At the top of the hierarchy and first in the sequence will be the National Planning Framework (NPF), followed by Regional Spatial Strategies (RSS), and then each region’s Natural and Built Environment Plan (NBEP).

Implementation is also going to require substantial structural change at council level, with the primary decision making on plan making being effectively removed from each council and given to the new “Regional planning committees”, which will include representatives from the councils, Māori and central government.  This represents a significant change, with elected councillors and councils generally having a significantly reduced role.

Where each district currently has a district plan and each region has a set of plans and a regional policy statement, the SP Bill requires each region to have a RSS and the NBE Bill will instead require each region to have one Natural and Built Environment Plan, to be developed by the Regional Planning Committees.

While the purpose of the NBE Bill is a shift from an effects-based system to a system focusing on ‘positive outcomes’, with identified bottom lines (‘environmental limits’) and associated targets, with some consideration of adverse effects, there is no detail in the bill on what those bottom lines and targets will be.  The stated intention is that a lot of that detail will first be imposed in the (NPF).  In other words, the Bill is only part of the picture, and no one will know in reality how this new regime might affect the way we do business and manage effects on the natural environment, until the NPF is notified.  The NPF is mandatory, and the Minister for the Environment is responsible for most of it.  The NPF will go through a public process and a Board of Inquiry before being finalised by the Minister.

As we understand it, some of the more comprehensive and recent National Policy Statements such as for Freshwater Management, Highly Productive Land and Urban Development may be effectively rolled over into the NPF, so in that sense, at least some of the “bottom lines” or targets that are already affecting the rural environment are already known and being implemented.  Similarly, if the National Policy Statement for Indigenous Biodiversity get finalised, it would also likely be rolled over into the new regime, setting bottom lines in terms of vegetation clearance.

It is not clear how any conflicts that arise between competing policies (such as the need to enable urban development and to also protect  highly productive land) are to be managed; the NBE Bill requires this to be determined in the drafting of the next iteration of the NPF.

Next in the sequence are the Regional Spatial Strategies that will be developed under the SP Bill.  The RSS are expected to have a strong mapping component and will have to implement that national direction from the NPF, and are required to identify key spatial plans for location of:

• areas for urban development, business and residential use, rural use, extractive industries;
• areas to be protected, restored or enhanced for environmental reasons;
• infrastructure – existing, planned, corridors/networks, power generation;
• common areas (eg coastal and marine) able to be developed;
• areas of cultural heritage and of significance to Māori;
• areas vulnerable to natural hazards and climate change.

And then under the RSS will be the NBE Plans, also developed by the Regional Committees, consistent with and implementing both the NPF and the RSS.  The process for putting in places the new instruments at a regional level will involve notification, submissions, a hearing by and independent panel (not the Regional Committee).

Consents

The proposed structure for rules and consents is quite different to the RMA.  The status of Non-complying has been removed.  While the Controlled status has been retained, it has been changed to effectively non-notified Restricted Discretionary because Councils can refuse consent.  Permitted status has been retained, but it is much more subjective whether activities might be permitted, and there could be quite onerous obligations that need to be complied with in order to be permitted, such as monitoring and reporting requirements and even a requirement to apply for a “permitted activity notice” confirming compliance before a permitted activity can commence.

Discretionary status remains, but with significant changes to the notification requirements in a way that, based on our initial understanding, will make notification more common.  There are new dispute resolution mechanisms, but their utility is unclear.

Powers to impose conditions are broader, and include more prescription if an adaptive management approach is required and broader powers for requiring financial contributions (now called ‘environmental contributions’).

There a significant changes with respect to water use. Consents to take, use, dam, divert and discharge to water will have a maximum term of 10 years, unless the NBE Plan specifically exempts an activity from that term.  There is also no longer a “first in first served” arrangement. Instead, with a resource such as water, a Plan will have to specify how that is to be allocated between competing users, and there is the ability to require all potential users to apply for consent at the same time and be heard and considered together.

Other key changes

The changes are significant so we have only summarised the key ones for the purpose of this article. Other key changes that will have an impact include:

• The role of iwi and the principles of Te Tiriti have been significantly improved;
• Existing use rights and existing consents may be able to be reviewed and rights changed or taken away;
• Councils will have significantly increased duties to monitor and enforce compliance;
• Stricter “polluter pays” provisions with respect to contamination;
• Scenic views from private properties, roads and trails must be disregarded;
• The precautionary approach and adaptive management are prescribed;
• Reference to amenity values has been removed and not replaced with an alternative.

Next steps

Public submissions on the Bills are now open until 5 February 2023.

Submissions on the Bills are made to the Environment Select Committee, who will review all public submissions before recommending any changes to the Bills. The Select Committee must report back by 22 May 2023.   

Following this, the Bills will go through three further debates in the Second Reading, review by the Committee of the Whole House, and the Third Reading. We will provide further updates on the progress of the Bills.

Want to know more?

You can read the NBE Bill here and the SP Bill here, and the following press releases:

• Environment Minister David Parker
• Finance Minister Grant Robertson
• Housing and Building and Construction Minister Megan Woods
• Agriculture Minister Damien O’Connor

Submissions on the NBE Bill may be made here and on the SP Bill here.

We will be undertaking a detailed review of the Bill and providing updates over the next few weeks – keep an eye out for upcoming articles about the key changes to the resource management system, and get in touch with our Environments, Planning and Natural Resources team.

PDF version: here.

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