The writing is on the wall, and the RMA is on its way out. An imminent, comprehensive overhaul of our resource management system offers us a once in a generation opportunity to crack the challenge of infrastructure planning and consenting. The infrastructure sector has been calling for reform in this space for a number of years, and the RMA Review Panel's recent report on the future of our resource management system has provided a blueprint for change. However, the success of any reform will require bravery and the political will to accept that the system cannot over-promise on environmental outcomes, or else it will be doomed to under-deliver on development outcomes, particularly for infrastructure.
At present, the consenting framework for major infrastructure is in the spotlight. While that is not entirely new, two driving forces have contributed to its current prominence. Firstly, the identification of infrastructure as vital to the country's economic recovery from COVID-19, post-lockdown and further into the future. Secondly, the subsequent release of the RMA Review Panel's report, with infrastructure forming an important consideration.
COVID-19 has had a chilling effect on New Zealand's economy. From very early on, infrastructure development was identified as a key way to kick-start the economy. The Government's response was two-fold: a funding response, which was touched on in this recent article; and a consenting response through the enactment of the COVID-19 Recovery (Fast-track Consenting) Act 2020, which we discuss further below.
Successfully integrating the planning of infrastructure with funding and delivery has been a significant failing of the current framework. The RMA Review Panel highlighted this clearly, recommending a greater focus on spatial planning and greater integration of the RMA, Local Government Act and Land Transport Management Act in order to address the issue. We have commented on strategic integration of resource management in a separate article as part of our RMA Reform Series, and agree with the Panel's recommendations – a greater focus on spatial and strategic planning by councils is critical to addressing the disconnect between infrastructure and planning. The infrastructure sector has been calling for this over a number of years, and the RMA Review Panel has clearly listened. It is a significant step forward.
While the focus on spatial planning may result in a clearer picture of the new and upgraded infrastructure required to provide for growth, it still needs to be consented. Whether that can be achieved is a different question.
The reality of our consenting framework
“You can have anything you want... But not everything you want.”
Susan R. Fussell
There have been criticisms of the Government's approach to policy development in the RMA space displaying a lack of "joined-up thinking". That is particularly apparent in the infrastructure space. There are calls for greater renewable electricity generation (with some suggesting we should move to 100% renewable electricity), for instance, yet the resource management framework provides a very different message. Environmental bottom lines imposed through policy documents such as the New Zealand Coastal Policy Statement and National Policy Statement on Freshwater Management make consenting an upgraded major renewable electricity generation scheme challenging, let alone a new scheme.
Similarly, council wastewater infrastructure across the country is in need of critical upgrades and significant investment. However, the increasing restrictions placed on freshwater management will make many of the critical upgrades that are required difficult and potentially cost-prohibitive. One example is efforts to reduce or prevent wastewater overflows. Avoiding wastewater overflows to catchments entirely may simply not be feasible with current technology and financial parameters. Any regulation of wastewater discharges needs to reflect this.
In another example, a number of major quarry operators have this week expressed concern that the broad definition of 'wetland' within the recent National Environmental Standards for Freshwater will essentially preclude potential quarry expansion opportunities. Yet infrastructure significantly depends on aggregate supply.
The Review Panel proposes to have a range of these competing environmental outcomes enshrined in the new legislation that would replace the RMA. As highlighted by the Parliamentary Commissioner for the Environment, Simon Upton, in delivering the RMLA 2020 Salmon lecture earlier this week, prescribing these outcomes in legislation will not make them any more compatible or deliverable. As drafted by the Panel, the outcomes are wide-ranging and un-prioritised, and conflict between them would seem to be inevitable.
In the event of such conflict, trade-offs are essential. While it may not be a popular view against a backdrop of calls for stronger environmental bottom lines, the reality is we cannot have everything at the same time. Improving environmental quality is a laudable goal, but cast too widely it could have significant implications. If we are serious about strengthening New Zealand's renewable electricity generation ranks, we need a framework that allows that to occur. If we want to deliver improved wastewater infrastructure across the country effectively and efficiently, we need to ensure that any regulations do not set unattainable hurdles.
Fast-track consenting
With RMA reform likely to proceed at pace immediately post-election, it will be interesting to see what experience can be gained over the next 12 months with the COVID-19 Recovery (Fast-track Consenting) Act 2020. That Act provides a fast-track consenting process for listed infrastructure projects and a similar process for other projects, subject to passing a Ministerial gatekeeper stage. It has been labelled a product of necessity, given the pandemic. However, a key question will be whether the limits on submitter rights compromise the quality of the decision-making process.
The experiences with the Special Housing Area legislation demonstrated some of the potential drawbacks of a fast-track consenting approach. Will the COVID-19 response legislation fall victim to the same issues? Only time will tell. At this stage, the RMA Review Panel has urged caution, particularly to ensure that it does not compromise minimum environmental standards or long-term goals of enhancing the quality of the natural and built environment. However, the Fast-Track Consenting Act does provide a unique pilot program for infrastructure consenting. Successful implementation could provide a number of opportunities for infrastructure consenting to be better provided for in any new resource management system.
In a similar vein, the Urban Development Act was enacted earlier this year and provides a broad range of powers to Kāinga Ora, including in relation to plan making and consenting. That legislation is a direct response to some of the challenges that major urban regeneration faces. As we look towards the new resource management framework – with integration and coordination being key principles – the presence of a parallel plan-making and consenting process that cuts across Council spatial planning would seem to be an aberration. A new, successfully implemented resource management system should not require the various bolt-on processes we have seen under the RMA, such as the Special Housing legislation, Urban Development Act, and COVID response legislation.
Looking forward
A significant overhaul of our resource management system is fast approaching, regardless of the outcome of Saturday's election. It offers significant opportunities for infrastructure, including a greater focus on spatial planning and better integration of the resource management framework with associated legislation. However, there are also risks. The new framework proposed by the RMA Review Panel promises a wide range of aspirational environmental outcomes. That risks creating a system that under-delivers on the very infrastructure and development it has been poised to enable.
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.